. 


STUDIES  IN  HISTORY,  ECONOMICS  AND  PUBLIC  LAW 

EDITED  BY  THE  FACULTY  OF  POLITICAL  SCIENCE 
OF  COLUMBIA  UNIVERSITY 

Volume  XLII]  [Whole  Number  108 


ATTITUDE  OF  AMERICAN  COURTS 

IN -LABOR  CASES 

r  fcr***' 

A  Study  in  Social  Legislation 


BY  '  "  ' 

GEORGE  GORHAM  GROAT,  Ph.D. 

. . 

Homer  E.  White  Professor  of  Economics  and  Sociology 
Ohio  Wesleyan  University 


Netu  ijork 

COLUMBIA  UNIVERSITY 

LONGMANS,  GREEN  &  CO.,  AGENTS 
London  :  P.  S.  King  &  Son 

191 1 


'Uitf 

G-S' 


Copyright,  1911 

BY 

GEORGE  GORHAM  GROAT 


to 

E.  W.  S.  G. 


/ 


QoV 


The  Constitution  of  the  United  States  was  made  for 
an  undefined  and  expanding  future,  and  for  a  people 
gathered  and  to  be  gathered  from  many  nations  and 
of  many  tongues.  .  .  .  A  We  shall  expect  that  the 

new  and  various  experiences  of  our  own  situation  and 
system  will  mold  and  shape  it  into  new  and  not  less 
useful  forms. 

Judge  Parker. 

It  must  be  remembered  that  even  the  constitutions 
we  call  rigid  must  take  their  choice  between  being 
bent  and  being  broken.  The  Americans  have  more 
than  once  bent  their  Constitution  in  order  that  they 
might  not  be  forced  to  break  it.  ...  And  it  has 
stood  because  it  has  submitted  to  a  process  of  constant 
though  sometimes  scarcely  perceptible  change  which 
has  adapted  it  to  the  conditions  of  the  new  age. 

James  Bryce. 

The  true  grounds  of  decision  are  considerations  of 
policy  and  of  social  advantage,  and  it  is  vain  to  sup¬ 
pose  that  solutions  can  be  attained  merely  by  logic 
and  general  propositions  of  law  which  nobody  dis¬ 
putes.  Propositions  as  to  public  policy  rarely  are 
unanimously  accepted,  and  still  more  rarely,  if  ever, 
are  capable  of  unanswerable  proof.  They  require  a 
special  training  to  enable  any  one  even  to  form  an 
intelligent  opinion  about  them. 


Justice  Holmes. 


PREFACE 


The  purpose  of  this  volume  is  to  present  the  various 
views  expressed  by  judges  in  their  decisions  in  labor  cases. 
They  are  stated  as  nearly  as  possible  in  the  words  of  the 
judges  themselves  by  means  of  liberal  quotations  from  opin¬ 
ions.  Intended  for  the  student  of  social  questions  who  is 
interested  in  the  relations  of  capital  and  labor,  it  aims  to 
show  the  political,  economic  and  social  principles  that 
guide  the  courts  in  the  solution  of  the  problems  that  come 
before  them.  While  it  is  true  that  courts  always  deal  with 
particular  cases  and  decide  only  specific  questions,  yet  prin¬ 
ciples  of  necessity  enter  into  their  opinions  and  guide  them  to 
their  conclusions.  These  principles  this  volume  seeks  to  re¬ 
veal  by  presenting  in  compact  form  the  several  lines  of  ar¬ 
gument  which  support  the  decisions.  It  is  believed  that 
only  by  reading  the  views  of  the  courts  as  expressed  in 
their  own  words  can  they  be  clearly  understood. 

The  discussion  has  been  purposely  restricted  to  those 
principles  and  problems  that  are  still  unsettled.  The  wide 
field  in  which  principles  are  well  established  and  where 
questions  only  of  technical  or  minor  significance  are  raised 
has  not  been  entered.  Since  the  purpose  is  to  set  forth  the 
various  conflicting  views  that  obtain,  the  reader  must  be 
warned  not  to  consult  these  pages  for  information  as  to 
the  exact  status  of  the  law  in  any  particular  jurisdiction. 
Further  it  should  be  said  that  while  in  the  discussion  views 
may  be  expressed  that  are  contrary  to  those  advanced  by 
judges  in  determining  the  law,  it  must  be  understood  that 
no  effort  is  made  to  urge  that  the  law  is  not  what  it  is. 


VI 


PREFACE 


What  the  law  is,  it  is;  and  as  such  it  must  be  obeyed.  In 
the  discussions  of  opinions  it  is  only  the  views  expressed 
and  the  reasoning  adopted  that  is  dealt  with. 

The  extracts  have  been  selected  from  more  than  five 
hundred  opinions  in  cases  dealing  with  various  phases  of 
the  labor  problem.  The  selections  have  been  made  with  a 
view:  (i)  to  giving  the  varied  opinions  held  by  different 
judges;  (2)  to  bringing  out  both  sides  of  the  controversy; 
and  (3)  to  emphasizing  by  the  larger  number  of  selec¬ 
tions  the  extent  of  the  acceptance  of  particular  views.  The 
length  of  the  extract  quoted  should  not,  in  every  case,  be 
taken  as  an  index  of  its  relative  importance. 

The  material  here  presented  has  been  limited  to  the  opin¬ 
ions  of  the  federal  supreme  and  circuit  courts  and  the  state 
courts  of  last  resort.  A  large  number  of  intensely  interest¬ 
ing  and  very  significant  opinions  are  undoubtedly  found  in 
the  decisions  of  the  lower  state  courts.  To  enter  this  vast 
field,  however,  would  have  extended  the  work  beyond  rea¬ 
sonable  limits. 

In  Chapters  IX,  X  and  XVII  the  author  has  quoted 
freely  and  without  special  citation  from  his  articles,  “  Pre¬ 
cedent  Versus  Conditions  in  Court  Interpretation  of  Labor 
Legislation,”  1  “  Unionism  and  the  Courts,”  2  and  “  Judi¬ 
cial  Views  of  the  Restriction  of  Women’s  Hours  of 
Labor.”  3  Exact  references  for  all  opinions  cited  are  given 
in  the  alphabetically-arranged  List  of  Cases  (pp.  3-6). 

It  is  hoped  that  the  book  may  be  found  a  useful  supple¬ 
ment  to  text-books  and  lectures  in  courses  on  labor  prob¬ 
lems,  as  well  as  of  service  to  those  who  are  interested  in 

1  Proceedings  of  the  Third  Annual  Meeting  of  the  American  As¬ 
sociation  for  Labor  Legislation,  Publication  no.  9,  p.  88.  Dec.,  1909. 

2  Yale  Review,  19:  144,  Aug.,  1910. 

8  Political  Science  Quarterly,  25 :  420,  Sept.,  1910. 


PREFACE 


vn 


these  problems,  but  who  have  not  sufficient  time  to  consult 
the  reports  of  the  cases. 

The  author  would  be  glad  to  thank  individually  the 
many  from  whom  he  has  received  helpful  suggestions  in 
the  preparation  of  the  work,  but  the  list  is  too  long.  He 
is  under  special  obligations,  however,  to  Professor  Selig- 
man  for  his  inspiration  and  encouragement,  and  to  Pro¬ 
fessor  Seager,  not  alone  for  advice  and  inspiration,  but  for 
the  more  arduous  work  that  he  has  cheerfully  undertaken 
of  reading  the  manuscript. 

George  Gorham  Groat. 

October,  ign. 


) 


•f 


CONTENTS 


PART  I 

INTRODUCTION 

Chapter  page 

List  of  Cases .  3 

I  Introduction .  7 

II  The  Courts .  19 

III  Early  Cases .  35 

PART  II 

UNION  ACTIVITIES 

IV  The  Strike .  57 

V  The  Boycott .  81 

VI  The  Picket . 117 

VII  The  Blacklist .  130 

VIII  Unionism . 136 

IX  Unionism — Legislation .  146 

X  Unionism— Closed  Shop  Contract .  162 

XI  Unionism — Rights  of  Unions  .  169 

XII  Special  Topics .  21 1 

XIII  Conclusions  .  234 

PART  III 
LEGISLATION 

XIV  Payment  of  Wages .  261 

XV  Payment  of  Wages— Screening  Coal .  275 

XVI  Hours  of  Labor — Mines  and  Smelters .  281 

XVII  Hours  of  Labor — Women .  292 

XVIII  Hours  of  Labor— Bakers .  311 

XIX  Hours  of  Labor— Barbers .  325 

XX  Tenements .  334 

XXI  Conditions  versus  Precedent .  341 

XXII  Conclusions . .  360 


IX 


PART  I 

INTRODUCTION 


I 


LIST  OF  CASES 


(The  following  is  a  list  of  the  cases  of  most  importance  from  the 
point  of  view  of  the  principles  discussed  in  the  opinions.  For  each  case 
the  state  and  the  year  as  well  as  the  reference  are  given.) 

Adair  v.  United  States,  U.  S.  Supreme  Court,  1908,  208  U.  S.,  161. 
Adams  v.  Brenan,  Illinois,  1898,  52  N.  E.,  314. 

Allis  Chalmers  Co.  v.  Iron  Moulders’  Union,  U.  S.  Circ.  Ct.,  1906, 
150  Fed.,  155. 

Arthur  v.  Oakes,  U.  S.  Circ.  Ct.  of  Ap.,  1894,  63  Fed.,  310. 

Atchison  T.  &  S.  F.  Ry.  v.  Gee,  U.  S.  Circ.  Ct.,  1905,  139  Fed.,  582. 
Atkin  v.  State  of  Kansas,  U.  S.  Sup.  Ct.,  1903,  191  U.  S.,  207. 

Barr  v.  Essex  Trades  Council,  New  Jersey,  1894,  30  Atl.,  881. 

Beck  v.  Railway  Teamsters,  Michigan,  1898,  77  N.  W.,  13. 

Berry  v.  Donovan,  Massachusetts,  1905,  74  N.  E.,  603. 

Bohn  Mfg.  Co.  v.  Hollis,  Minnesota,  1893,  55  N.  W.,  1119. 

Booth  v.  Burgess,  New  Jersey,  1906,  65  Atl.,  226. 

Boyer  v.  Western  Union,  U.  S.  Circ.  Ct.,  1903,  124  Fed.,  246. 

Braceville  Coal  Co.  v.  People,  Illinois,  1893,  35  N.  E.,  62. 

Broad,  In  re,  Washington,  1904,  78  Pac.,  1004. 

Carew  v.  Rutherford,  Massachusetts,  1870,  106  Mass.,  1. 

Carter  v.  Oster,  Missouri,  1908,  112  S.  W.,  995. 

Casey  v.  Typographical  Union,  U.  S.  Circ.  Ct.,  1891,  45  Fed.,  135. 

Cohn  v.  People,  Illinois,  1894,  37  N.  E.,  60. 

*  Commonwealth  v.  Carlisle,  Court  of  Nisi  Prius,  Philadelphia,  1821, 
Brightley’s  Rep.,  36. 

Commonwealth  v.  Hamilton  Mfg.  Co.,  Massachusetts,  1876,  120  Mass., 

383. 

A  Commonwealth  v.  Hunt,  Massachusetts,  1842,  4  Metcalf,  hi. 
Commonwealth  v.  Perry,  Massachusetts,  1891,  28  N.  E.,  1126. 
Cumberland  Glass  Mfg.  Co.  v.  Glass  Bottle  Blowers’  Association,  New 
Jersey,  1899,  46  Atl.,  208. 

Curran  v.  Galen,  New  York,  1897,  46  N.  E.,  297. 

Dalton,  In  re,  Kansas,  1899,  59  Pac.,  336. 

Eden  v.  People,  Illinois,  1896,  43  N.  E.,  1108. 

Erdman  v.  Mitchell,  Pennsylvania,  1903,  56  Atl.,  327. 

Farmers’  Loan  and  Trust  Co.  v.  No.  Pacific  Ry.  Co.,  U.  S.  Circ.  Ct., 
1894,  60  Fed.,  803. 


3 


4 


LIST  OF  CASES 


Flaccus  v.  Smith,  Pennsylvania,  1901,  48  Atl.,  894. 

Fletcher  Co.  v.  International  Association,  New  Jersey,  1903,  55  Atl., 

1077. 

Frorer  v.  People,  Illinois,  1892,  31  N.  E.,  395. 

Gillespie  v.  People,  Illinois,  1900,  58  N.  E.,  1007. 

Godcharles  v.  Wigeman,  Pennsylvania,  1886,  6  Atl.,  354. 

Gray  v.  Building  Trades  Council,  Minnesota,  1903,  97  N.  W.,  663. 

Gulf  Bag  Co.  v.  Suttner,  U.  S.  Circ.  Ct.,  1903,  124  Fed.,  467. 

Holden  v.  Hardy,  Utah,  1896,  46  Pac.,  756. 

Holden  v.  Hardy,  U.  S.  Sup.  Ct.,  1898,  169  U.  S.,  366. 

Hopkins  v.  Oxley  Stave  Co.,  U.  S.  Circ.  Ct.  of  Ap.,  1897,  83  Fed.,  912. 
Hundley  v.  Louisville  &  N.  Ry.  Co.,  Kentucky,  1898,  48  S.  W.,  429. 
International  Text-Book  Co.  v.  Weissinger,  Indiana,  1902,  65  N.  E.,  521. 
Jacobs,  In  re,  New  York,  1885,  98  N.  Y.,  98. 

Jacobs  v.  Cohen,  New  York,  1905,  76  N.  E.,  5. 

Jentzsch,  Ex  parte,  California,  1896,  44  Pac.,  803. 

Jersey  City  Printing  Co.  v.  Cassidy,  New  Jersey,  1902,  53  Atl.,  230. 
Johnson  v.  Goodyear  Mining  Co.,  California,  1899,  59  Pac.,  304. 

Jones  v.  VanWinkle,  Georgia,  1908,  62  S.  E.,  236. 

Jordahl  v.  Hayda,  California,  1905,  82  Pac.,  1079. 

Karges  Furniture  Co.  v.  Wood-Workers’  Union,  Indiana,  1905,  75  N.  E., 

877. 

King  v.  Ohio  &  Miss.  Ry.  Co.,  U.  S.  Circ.  Ct.,  1877,  7  Biss.,  529. 
Knoxville  Iron  Co.  v.  Harbison,  U.  S.  Sup.  Ct.,  1901,  183  U.  S.,  13. 
Lennon,  Ex  parte,  U.  S.  Sup.  Ct.,  1897,  166  U.  S.,  548. 

Lindsay  &  Co.  v.  Montana  F.  of  L.,  Montana,  1908,  96  Pac.,  127. 
Lochner  v.  People  of  the  State  of  New  York,  U.  S.  Sup.  Ct.,  1905, 
198  U.  S.,  45. 

Loewe  v.  California  F.  of  L.,  U.  S.  Circ.  Ct.,  1905,  139  Fed.,  71. 

Loewe  v.  Lawlor,  U.  S.  Circ.  Ct.,  1906,  148  Fed.,  924. 

Loewe  v.  Lawlor,  U.  S.  Sup.  Ct.,  1908,  208  U.  S.,  274. 

McCain  v.  State,  Georgia,  1907,  58  S.  E.,  550. 

McLean  v.  State,  Arkansas,  1906,  98  S.  W.,  729. 

McLean  v.  State,  U.  S.  Sup.  Ct.,  1909,  29  Sup.  Ct.  Rep.,  206. 

Marx  &  Haas  Co.  v.  Watson,  Missouri,  1902,  67  S.  W.,  391. 

Morgan,  In  re,  Colorado,  1899,  58  Pac.,  1071. 

Muller  v.  State  of  Oregon,  U.  S.  Sup.  Ct.,  1908,  208  U.  S.,  412. 

National  Protective  Association  v.  Cumming,  New  York,  1902,  63 
N.  E.,  369. 

*  Newman,  Ex  parte,  California,  1858,  9  Cal.,  502. 

O’Brien  v.  People,  Illinois,  1905,  75  N.  E.,  108. 

Old  Dominion  S.  S.  Co.  v.  McKenna,  U.  S.  Circ.  Ct.,  1887,  18  Abbott 
N.  C.,  262. 

O’Neil  v.  Behanna,  Pennsylvania,  1897,  37  Atl.,  843. 


LIST  OF  CASES 


o 


Otis  Steel  Co.  v.  Local  Union,  U.  S.  Circ.  Ct.,  1901,  no  Fed.,  698. 
Parkinson  Co.  v.  Building  Trades  Council,  California,  1908,  98  Pac., 
1027. 

Payne  v.  Western  &  Atlantic  R.  R.  Co.,  Tennessee,  1884,  49  Am.  Rep., 

666. 

Peel  Splint  Coal  Co.  v.  State,  West  Virginia,  1892,  15  S.  E.,  1000. 
People  v.  Coler,  New  York,  1901,  59  N.  E.,  776. 

%  People  v.  Fisher,  New  York,  1835,  14  Wendell,  9. 

People  v.  Grout,  New  York,  1904  72  N.  E.,  464. 

People  v.  Havnor,  New  York,  1896,  43  N.  E.,  541. 

People  v.  Lochner,  New  York,  1904,  69  N.  E.,  373. 

People  v.  Marcus,  New  York,  1906,  77  N.  E.,  1073. 

People  v.  Melvin,  New  York,  1810,  2  Wheeler  Cr.  Cases,  262. 

People  v.  Metz,  New  York,  1908,  85  N.  E.,  1070. 

>  People  v.  Trequier,  New  York,  1823,  1  Wheeler  Cr.  Cases,  142. 

People  v.  Williams,  New  York,  1907,  81  N.  E.,  778. 

Perkins  v.  Pendleton,  Maine,  1897,  38  Atl.,  96. 

Petit  v.  State  of  Minnesota,  U.  S.  Sup.  Ct.,  1900,  177  U.  S.,  164. 
Pickett  v.  Walsh,  Massachusetts,  1906,  78  N.  E.,  753. 

Plant  v.  Woods,  Massachusetts,  1900,  57  N.  E.,  ion. 

Platt  v.  Philadelphia  &  Reading  R.  R.  Co.,  Pennsylvania,  1894,  65  Fed.,  660. 
Pope  Motor  Car  Co.  v.  Keegan,  U.  S.  Circ.  Ct.,  1906,  150  Fed.,  148. 
Ramsey  v.  People,  Illinois,  1892,  32  N.  E.,  364. 

Republic  Iron  and  Steel  Co.  v.  State,  Indiana,  1903,  66  N.  E.,  1005. 
Reynolds  v.  Davis,  Massachusetts,  1908,  84  N.  E.,  457. 

Ritchie  v.  People,  Illinois,  1895,  40  N.  E.,  454. 

Ritchie  v.  Wayman,  Illinois,  1910,  91  N.  E.,  695. 

Rohlf  v.  Kasemeier,  Iowa,  1908,  118  N.  W.,  276. 

Secor  v.  Toledo  &c.  Ry.  Co.,  U.  S.  Circ.  Ct.,  1877,  7  Biss.,  513. 

Shaffer  &  Munn  v.  Union  Mining  Co.,  Maryland,  1880,  55  Md.,  74. 
Sherry  v.  Perkins,  Massachusetts,  1888,  17  N.  E.,  307. 

Skinner  v.  Garnett  Co.,  U.  S.  Circ.  Ct.,  1899,  96  Fed.,  735. 

State  v.  Browne  &  Sharpe  Mfg.  Co.,  Rhode  Island,  1892,  25  Atl.,  246. 
State  v.  Buchanan,  Washington,  1902,  70  Pac.,  52. 

State  v.  Cantwell,  Missouri,  1904,  78  S.  W.,  569. 

State  v.  Donaldson,  New  Jersey,  1867,  32  N.  J.  Law,  151. 

State  v.  Glidden,  Connecticut,  1887,  8  Atl.,  890. 

State  v.  Goodwill,  West  Virginia,  1889,  10  S.  E.,  285. 

State  v.  Haun,  Kansas,  1899,  59  Pac.,  340. 

State  v.  Holden,  Utah,  1896,  46  Pac.,  1105. 

State  v.  Julow,  Missouri,  1895,  31  S.  W.,  781. 

State  v.  Justus,  Minnesota,  1902,  88  N.  W.,  759. 

State  v.  Kreutzberg,  Wisconsin,  1902,  90  N.  W.,  1098. 

State  v.  Loomis,  Missouri,  1893,  22  S.  W.,  350. 


6 


LIST  OF  CASES 


State  v.  Muller,  Oregon,  1906,  85  Pac.,  855. 

State  v.  Stewart,  Vermont,  1887,  9  Atl.,  559. 

State  v.  VanPelt,  North  Carolina,  1904,  49  S.  E.,  177. 

State  v.  Zeno,  Minnesota,  1900,  81  N.  W.,  748. 

Thomas  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  U.  S.  Circ.  Ct.,  1894, 
62  Fed.,  803. 

Toledo  A.  A.  &  N.  M.  Ry.  Co.  v.  Pennsylvania  Co.,  U.  S.  Circ.  Ct., 
1893,  54  Fed.,  730,  746. 

Union  Pacific  Ry.  Co.  v.  Reuf,  U.  S.  Circ.  Ct.,  1902,  120  Fed.,  102. 
United  States  v.  Haggerty,  U.  S.  Circ.  Ct.,  1902,  116  Fed.,  510. 

United  States  v.  Kane,  U.  S.  Circ.  Ct.,  1885,  23  Fed.,  748. 

Vegelahn  v.  Guntner,  Massachusetts,  1896,  44  N.  E.,  1077. 

Wabash  R.  R.  Co.  v.  Hannahan,  U.  S.  Circ.  Ct.,  1903,  121  Fed.,  563. 
Walker  v.  Cronin,  Massachusetts,  1871,  107  Mass.,  555. 

Wenham  v.  State,  Nebraska,  1902,  91  N.  W.,  421. 

Willcutt  &  Sons  Co.  v.  Bricklayers’  Union,  Massachusetts,  1908,  85 
N.  E.,  897. 

Willner  v.  Silverman,  Maryland,  1909,  71  Atl.,  962. 

Worthington  v.  Waring,  Massachusetts,  1892,  32  N.  E.,  744. 


CHAPTER  I 


Introduction 

To  the  thoughtful  observer  of  the  relations  between  em¬ 
ployers  and  their  employees,  the  conclusion  is  inevitable  that 
American  courts  are  taking  a  more  and  more  active  part 
in  labor  disputes.  The  number  of  cases  carried  into  court 
for  settlement  is  constantly  growing,  the  variety  and 
complexity  of  the  questions  raised  for  adjudication  is  be¬ 
coming  ever  greater,  and  the  importance  of  the  interests  in¬ 
volved  is  steadily  increasing. 

*  Until  the  end  of  the  first  Quarter  of  the  nineteenth  cen¬ 
tury  a  labor  dispute  was  rarely  carried  to  court.  More¬ 
over,  the  few  that  were  brought  for  adjudication  were 
finally  settled  in  the  lower  courts  without  appeaL  Con¬ 
sequently,  the  outcome  of  these  cases  and  the  opinions  of 
the  judges  who  decided  them  excited  little  attention. 
Most  of  these  cases  arose  under  the  law  against  conspir¬ 
acies,'  and  may  now  be  studied  in  the  recently-published 
Documentary  History  of  American  Industrial  Society. 

*  The  second  and  third  quarters  of  the  century  were  some¬ 
what  richer  in  litigation  between  employers  and  employees, 
but  even  in  this  period  the  custom  of  appealing  such  cases 
had  not  been  formed,  and  consequently  the  progress  of  the 
law  was  slow.  It  was  only  in  the  last  quarter  of  the  century 
that  labor  cases  became  really  numerous.  Since  about 
1875  the  growth  has  been  rapid.  The  difficulty  in  study¬ 
ing  the  opinions  for  this  last  period  arises  not  from  the 
dearth  but  from  the  wealth  of  the  material.  The  perfected 

7 


8 


AMERICAN  COURTS  IN  LABOR  CASES 


system  of  reporting-  brings  into  print  the  entire  output  of 
our  whole  court  system,  federal  and  state,  and  makes  the 
study  one  to  which  but  few  can  devote  the  necessary  time. 

At  the  present  time,  neither  employer  nor  employee  hesi¬ 
tates  to  appeal  to  the  courts  when  he  thinks  it  will  be  to 
his  advantage.  To  each  of  the  parties  the  court  becomes  a 
means  of  furthering  its  ends.  It  is  probably  not  over¬ 
stating  the  truth  to  say  that  while  the  appeals  are  made 
in  the  name  of  justice,  they  are  in  fact  made  in  the  hope 
of  gaining  an  advantage  without  particular  regard  to  jus-'- 
tice.  It  will  at  once  appear  that  the  court  is,  as  a  result, 
placed  in  an  exceedingly  delicate  position.  Where  two 
parties  are  seeking  its  aid  for  their  own  advantage,  one  of 
them  is  sure  to  be  dissatisfied  with  the  outcome.  Each 
possesses  its  own  peculiar  political  influence,  and  each  is 
disposed  to  use  that  influence  in  its  own  cause.  But  the 
real  importance  of  the  court  does  not  lie  primarily  in  this 
phase  of  the  situation.  The  court  must  stand  between  the 
parties  and  reduce  the  contest  to  a  basis  of  justice,  but  it 
must  also  prevent  the  struggle  from  becoming  one  peculiar 
to  the  special  interests  involved  and  must  keep  it  upon  the 
broad  and  even  level  of  all  social  conflict.  Society  cannot 
stand  by  and  allow  the  struggle  to  become  a  specialized  one. 
It  can  not  permit  the  “  rules  of  war  ”  to  become  effective. 
This  task  of  regulation  must  be  assigned  to  the  courts,  and 
the  courts  must  accomplish  it  in  accordance  with  their  own 
established  methods  of  procedure.  How  are  they  succeed¬ 
ing  in  this  difficult  task?  Is  any  progress  evident?  If  so, 
along  what  lines  and  with  what  degree  of  speed  ?  No  cate¬ 
gorical  answers  to  these  questions  can  be  given.  The  many 
independent  state  courts  of  last  resort  do  not  agree.  The 
numerous  federal  courts  present  the  same  situation,  and 
the  cases  that  have  been  carried  up  to  the  federal  supreme 
court  are  comparatively  few  in  number.  This  confusion  is 


INTRODUCTION 


:) 

recognized  by  the  courts  themselves,  as  is  shown  by  a  few 
citations  from  their  opinions : 

Many  other  illustrations  might  be  given,  but  the  foregoing 
suffice  to  show  the  confusion  among  different  courts.  (State 
ex  rel.  Zillmer  v .  Kreutzberg.) 

We  are  not  inclined  to  follow  the  reasoning  of  the  court  in 
that  case,  although  it  is  well  considered  and  ably  presented. 
(State  v.  Buchanan.) 

The  case  is  well  considered  and  ably  presented,  but  is,  we 
think,  borne  down  by  the  weight  of  authority  and  sound 
reason.  (State  v.  Muller.) 

While  we  entertain  a  profound  respect  for  the  courts  of  our 
sister  states,  we  do  not  feel  called  upon  to  yield  our  conviction 
of  right  to  a  blind  adherence  to  precedent ;  especially  when 
they  are,  in  our  opinion,  opposed  to  principle ;  and  the  reason¬ 
ing  by  which  they  are  endeavored  to  be  supported  is  by  no 
means  satisfactory  or  convincing.  (Ex  parte  Newman.) 

In  In  re  Morgan  it  is  contended  by  the  learned  judge  .  .  . 
that  the  conclusion  reached  in  Commonwealth  v.  Hamilton 
Mfg.  Co.  is  in  conflict  with  the  later  case  by  the  same  court  in 
Commonwealth  v.  Perry.  A  careful  analysis  of  the  Perry 
Case  makes  it  clearly  apparent  that  there  is  no  such  conflict. 
It  neither  refers  to,  nor  in  any  manner  criticizes,  the  correct¬ 
ness  of  the  conclusions  reached  in  the  Hamilton  Case.  (State 
v.  Cantwell.) 

The  student  desires  a  clear  statement  of  underlying  prin¬ 
ciples,  but  this  the  opinions  never  afford,  or  only  as  obiter 
dicta — the  views  of  the  writer  of  the  opinion — having  a 
more  or  less  indirect  bearing  upon  the  case  at  bar.  As 
one  judge  expresses  it,  the  court  is  not 

called  upon  to  lay  down  general  rules  by  which  labor  organiza¬ 
tions  should  be  governed  in  their  relations  to  the  business  in¬ 
terests  of  the  country  and  to  society.  We  are  to  deal  alone 
with  the  facts  presented  in  this  particular  case,  and  the  prin- 


10 


AMERICAN  COURTS  IN  LABOR  CASES 


ciples  of  the  law  by  which  they  shall  be  governed.  (Jordahl 
v.  Hay  da.) 

The  lawyer  insists  that  such  utterances  of  general  prin¬ 
ciples  or  discussions  of  principles,  unless  they  have  a  very 
direct  bearing  on  the  case  at  bar,  have  no  weight.  Doubt¬ 
less  as  law  they  have  none;  and  recognition  of  this  fact  is 
important  to  one  who  seeks  to  sustain  his  contention  before 
a  court  by  citing  legal  authority.  The  obiter  dicta,  how¬ 
ever,  are  of  great  importance  for  the  light  they  throw  upon 
the  development  of  principles.  A  suggestion  made  by  one 
judge,  entirely  aside,  it  may  be,  from  the  main  issue,  has 
its  influence  upon  another  judge,  who  reads  the  opinion. 
The  obiter  may  be  accepted  by  him  and  woven  into  the 
fabric  of  his  argument  on  another  case,  or  it  may  be  noticed 
only  for  purposes  of  refutation.  So  by  degrees  it  works 
its  way  into  the  general  field  of  discussion  and,  possibly 
quite  unconsciously,  becomes  a  part  of  the  mental  attitude 
of  judges  toward  similar  cases  as  they  arise.  At  last  it 
may  receive  recognition  as  an  accepted  legal  principle.  It 
is  because  of  the  possibility  of  such  development  that  obiter 
dicta  are  of  consequence.  Viewed  in  this  light  the  ani¬ 
madversions  of  judges  on  social,  political  or  economic  topics 
take  on  a  peculiar  interest.  For  this  reason  they  have  been 
inserted  in  the  extracts  in  addition  to  the  more  generally 
accepted  rules  of  law. 

Decided  cases  are,  in  some  sense,  evidence  of  what  the  law 
is.  We  say  in  some  sense,  because  it  is  not  so  much  the  de¬ 
cision  as  it  is  the  reasoning  upon  which  the  decision  is  based, 
which  makes  it  authority,  and  requires  it  to  be  respected. 
(Bryan  v.  Berry.) 

But  obiters  have  a  value,  for  they  show  the  drift  of  the 
judicial  mind,  and  indicate  what  the  decisions  will  be  when 
certain  questions  get  fairly  before  the  courts.  (Cogley,  The 
Law  of  Strikes,  Lockouts,  and  Labor  Organizations,  p.  229.) 


INTRODUCTION 


1 1 

When  read  in  this  light,  the  decisions  reveal  a  most  in¬ 
teresting  variety  in  points  of  view,  in  lines  of  argument, 
and  in  the  emphasis  assigned  to  particular  considerations. 
In  the  midst  of  such  variety  there  is  slowly  developing, 
however,  a  uniformity  of  underlying  principle,  and  it  is 
this  line  of  development  that  is  of  utmost  importance.  No 
concise  statement  can  yet  be  made  of  these  deep-seated,  far- 
reaching  principles,  for  their  formulation  is  not  yet  per¬ 
fected.  That  the  principles  are  being  developed,  however, 
through  which  fundamental  ideas  of  justice  may  be  applied 
to  the  ever  new  and  ever  more  complex  conditions  of  in¬ 
dustrial  life,  no  one  who  studies  the  opinions  will  deny. 
This  process  will  be  of  increasing  importance,  for  the  prin¬ 
ciples  so  evolved  must  prevail ;  they  can  be  set  aside  only  by 
a  revolution  of  our  form  of  government  and  society.  These 
basic  principles,  newly  stated,  sum  up  the  political,  eco¬ 
nomic  and  social  philosophy  of  the  past  and  apply  it  to  the 
present.  Upon  the  courts  then  we  must  rely  for  the  slow 
but  finally  satisfactory  solution  of  many  of  the  difficulties 
involved  in  our  industrial  strife. 

The  following  study  of  the  opinions  in  labor  cases  reveals 
three  facts  of  tremendous  importance  : 

(1)  The  judges  of  our  courts  have  been  too  greatly  in¬ 
fluenced  by  precedents  set  in  decisions  applicable  to  con¬ 
ditions  that  have  passed  away. 

(2)  There  is  clearly  discernible  a  tendency  on  the  part 
of  many  influential  judges  distributed  rather  widely  among 
state  courts  of  final  appeal  and  the  federal  courts  to  give 
more  attention  to  actual  present  conditions. 

(3)  The  law  is  being  adapted  to  these  new  conditions  by 
reading  new  meaning  into  the  phrases  of  the  constitutions, 
thus  making  formal  constitutional  amendments  unnecessary. 

The  second  and  third  tendencies  afford  ground  for  con¬ 
gratulation,  and  it  is  to  be  hoped  that  they  may  become 


12 


AMERICAN  COURTS  IN  LABOR  CASES 


even  more  pronounced,  stopping  only  just  short  of  the  point 
that  would  endanger  our  fundamental  institutions. 

The  study  further  shows,  ( i )  that  there  are  some  exceed¬ 
ingly  delicate  problems  involved  in  these  controversies; 

,  and  (2)  that  beyond  all  question  a  very  encouraging  degree 
of  progress  has  been  made  toward  their  settlement.  That 
courts  so  frequently  settle  particular  difficulties  in  a  peace¬ 
able  way  before  the  conditions  have  become  so  acute  as  to 
cause  serious  trouble;  or  even  that  they  so  frequently  step 
in  and  assume  authority  after  serious  trouble  has  begun — 
these  are  not  the  acts  that  entitle  them  to  greatest  respect. 
Such  work  is  certainly  not  to  be  ignored  in  any  casting 
up  of  their  credits.  But  far  ahead  of  this  in  real  importance 
is  the  steady  progress  that  has  been  made  in  the  develop¬ 
ment  of  principles  and  of  recognized  rules  of  law.  These 
rules  and  principles  will  guide  in  the  decision  of  future 
cases.  They  will  also  become  generally  known  and  recog¬ 
nized  as  valid  among  the  leaders  in  the  community,  thus 
obviating  the  necessity  of  so  many  appeals  to  the  courts 
in  the  future. 

A  reading  of  early  cases  and  comparison  of  them  with 
later  ones  indicate  the  substantial  progress  that  has  already 
* 1  been  made.  Organizations  of  laborers  are  no  longer  in 
*  themselves  conspiracies,  looked  upon  with  suspicion  and 
condemned  almost  without  a  hearing.  As  has  been  said 
in  a  recent  decision:  “  We  do  not  find  it  necessary  to  enter 
upon  a  discussion  of  the  right  of  labor  to  organize  for 
mutual  benefit  and  self-protection.  All  sane-thinking  per¬ 
sons  concede  this  right.”  (Jordahl  v.  Hayda.) 

This  gain  it  is  difficult  to  appreciate.  Even  the  members 
of  labor  organizations  themselves  sometimes  fail  to  realize 
it,  so  intent  are  they  upon  developing  their  plans  for  the 
future.  In  addition  to  the  full  recognition  of  the  right  to 
organize  there  are  running  through  the  decisions  state- 


INTRODUCTION 


13 


ments  that  would  grow  wearisome  in  the  frequent  repetition 
were  it  not  for  their  fundamental  importance.  Such  state¬ 
ments  give  expression  to  the  idea  of  equality  in  an  almost 
infinite  variety  of  form.  “  Equality  of  capitalist  and  laborer 
before  the  law;”  “  The  law  recognizes  neither  the  capitalist 
nor  the  laborer  but  the  man;”  “  Every  one  is  entitled  to  the 
equal  and  impartial  protection  of  the  law.”  Such  expres¬ 
sions  and  many  others  of  like  import  may  be  found  in 
abundance.  Some  persons  may  be  pessimistic  enough  to 
say  that  they  are  mere  high-sounding  phrases,  beautiful 
to  hear  but  empty  of  meaning,  as  a  very  little  observation 
of  practical  life  will  show.  Even  admitting  the  truth  of 
the  statement,  there  still  remains  great  consolation  in  the 
existence  of  such  statements  merely  as  the  expression  of 
ideals.  But  one  does  not  have  to  admit  the  charge.  While 
the  ideal  has  not  yet  been  realized  in  all  its  fullness,  cer¬ 
tainly  some  very  -real  progress  has  been  made.  The  prac¬ 
tical  point  gained,  then,  is  the  recognition  of  the  right  of 
the  laborer  to  do  as  any  other  man  would  do,  to  act  always 
as  a  citizen,  whether  in  pursuit  of  his  interest  as  a  laborer 
or  of  any  other  special  interest. 

At  this  point  the  difficulty  increases  by  the  very  fact  of 
progress  made.  Granted  the  right  to  organize  and  to  act 
with  others  in  organization,  the  question  then  arises,  What 
may  be  done  by  the  organizations?  Here  one  enters  the 
field  of  union  activity  in  its  great  variety  and  becomes  aware 
of  the  infinite  complexity  of  its  problems. 

Here  it  is  that  propositions  that  seem  simple  to  start  with 
become  involved  in  confusion  and  disagreement  at  the  end. 
The  courts,  always  guided  by  precedent  where  precedent 
can  be  found,  search  for  it  here  in  vain.  New  situations 
must  be  met,  and  in  the  absence  of  precedents  the  course 
adopted  is  to  seize  upon  older  principles  and  revise  them  to 
meet  the  new  conditions.  This  has  been  a  slow  process,  as 


14 


AMERICAN  COURTS  IN  LABOR  CASES 


courts  have  been  reluctant  to  pass  upon  any  principle  further 
than  its  application  to  the  particular  case  at  bar.  Success 
has  certainly  attended  their  efforts  though  it  has  come  at 
times  with  exasperating  slowness.  Yet  a  difficulty  has  re¬ 
mained  that  seems  as  yet  not  to  have  been  met  very  satis¬ 
factorily.  The  courts  have  been  modifying  and  restating 
the  principles  of  individual  rights  to  meet  the  case  of  the 
aggressive  unionist,  the  striker,  the  boycotter  and  the  pick- 
eter.  During  this  time  capital  has  been  concentrated  under 
the  control  of  the  corporation  and  the  corporation  has 
loomed  up  as  the  rival  of  the  employee,  in  place  of  his 
former  rival,  the  individual  employer.  Corporation  law 
has  had  its  development  in  a  more  uninterrupted  way  until 
the  corporation,  a  powerful  aggregation  in  fact,  comes  to 
the  bar  as  a  “  person  ”  claiming  all  the  rights  of  persons 
and  opposes  its  strength  to  that  of  the  laborer  as  a  person 
but  a  physical  person  only.  The  various  methods  by  which 
the  several  courts  have  met  this  difficult  situation  are  dis¬ 
cussed  in  Part  II. 

Efforts  to  cut  the  Gordian  knot  by  legislation  have  pre¬ 
sented  new  questions  to  the  courts.  Laws  must  be  consti¬ 
tutional.  The  application  of  the  constitutionality  test  has 
filled  many  pages  of  court  reports.  vFor  a  restless,  active 
people,  who  look  upon  their  government  as  their  own,  it  is 
easy  to  regard  legislation  as  the  most  effective  means  of 
remedying  undesirable  situations.  When  the  laborers  are 
worsted  in  a  contest  for  shorter  hours,  or  the  more  regular 
payment  of  wages,  or  when  the  community  becomes  im¬ 
pressed  with  the  evil  conditions  that  surround  the  laboring 
classes,  the  most  direct  and  effective  way  of  settling  the 
matter  satisfactorily  seems  to  be  to  enact  legislation?  But 
experience  has  shown  that  it  is  much  easier  to  convince  the 
legislature  that  a  measure  is  necessary  than  to  convince 
the  courts  that  it  is  constitutional.  Here  again  the  ancient 


INTRODUCTION 


15 


and  time-honored  principles  formulated  by  the  “  fathers  ” 
are  brought  forward  as  the  standard  for  testing  the  new 
legislation.  “  Life,  liberty  and  property  ”  are  to  be  pro¬ 
tected,  as  required  by  the  constitution,  and  no  one  is  to  be 
deprived  of  any  one  of  them  except  by  “  due  process  of 
law.”  The  development  of  the  property  concept  is  extended 
to  include  right  to  contract,  right  to  labor,  right  to  business 
profits.  These  and  other  “  rights  ”  have  become  “  property 
rights,”  and  thus  are  protected  as  constitutional.  At  this 
point  the  court  faces  a  difficulty  of  importance.  From  a 
legal  and  constitutional  point  of  view  it  is  of  great  con¬ 
sequence  that  consistency  be  preserved  between  the  general 
provisions  of  the  fundamental  law  and  the  various  enact¬ 
ments  of  the  legislatures.  To  the  community  at  large,  the 
importance  of  such  a  matter  seems  insignificant  in  face  of 
the  crying  need  for  reform  presented  by  some  of  our  in¬ 
dustrial  conditions.  Thus  arises  a  conflict  between  two 
forces.  The  legislature  seeks  to  secure  the  laws  at  the  ex¬ 
pense,  if  necessary,  of  consistency;  while  the  courts  often 
insist  that  consistency  be  preserved  at  the  expense,  if  nec¬ 
essary,  of  needed  legislation. 

Of  course  very  much  legislation  of  this  character  has 
been  enacted  and  has  been  sustained  by  the  courts.  The 
laws  that  usually  come  under  the  general  term  “  factory 
legislation,”  and  deal  with  sanitation,  safety  devices,  child 
labor,  and  other  similar  topics  are  admittedly  constitutional. 
Such  statutes  are  not  often  attacked  in  court.  When  they 
are,  it  is  usually  on  a  technicality  and  the  decision  does  not 
discuss  the  principle  involved.  The  police  power  is  given 
a  constantly-widening  significance  and  admittedly  covers 
such  legislation  when  the  health,  safety  or  welfare  of  the 
public  is  concerned.  The  issue  arises  at  the  margin  where 
the  health,  safety  or  welfare  of  the  public  merges  into  that 
of  the  individual.  The  difficulty  of  drawing  this  marginal 


j6  •  AMERICAN  COURTS  IN  LABOR  CASES 

line  appears  in  more  cases  than  one.  The  battle  has  been 
fiercely  waged  at  this  point.  That  some  progress  has  been 
made  is  evident.  That  much  remains  to  be  done  is  shown 
by  the  fact  that  on  practically  the  same  issue  the  courts 
of  final  appeal  in  different  states  adopt  directly  opposite 
lines  of  argument.  The  instances  of  this  are  numerous  and 
will  be  found  illustrated  in  Part  III. 

The  decisions  when  taken  in  connection  with  conditions 
at  times  lead  to  great  inconsistencies,  and  even  seem  to  place 
the  court  in  the  position  of  standing  actually  in  the  way  of 
those  whose  rights  they  seek  to  protect.  The  conservatism 
of  the  courts  keeps  them  close  to  the  literal  statements  of 
the  constitution.  Through  the  legislature  the  changing  con¬ 
ditions  of  progress  work  themselves  into  law  often  clearly 
suited  to  meet  the  difficulties  arising  from  such  conditions. 
In  such  instances  we  have  the  spirit  of  progress  working 
out  through  legislation  which  the  spirit  of  conservatism 
working  through  the  courts  practically  annuls.  How  to 
reconcile  these  conflicting  tendencies  is  a  problem  not  for 
the  courts  alone  but  for  society  itself  to  solve.  The  courts 
in  bringing  all  legislation  into  conformity  with  the  funda¬ 
mental  law  are  but  doing  the  work  traditionally  and  consti¬ 
tutionally  assigned  to  them,  but  they  are  doing  it  in  some 
cases  altogether  too  effectively.  It  is  necessary  to  adapt  to 
the  changing  conditions  an  1  increasingly  complex  relations 
of  modern  industrial  life  the  abstract  principles  of  personal 
liberty  which  were  formulated  over  a  century  ago  and 
which  are  embodied  in  our  constitutions. 

The  courts  often  manifest  a  strange  dislike  for  legisla¬ 
tion  because  of  what  it  may  lead  to  as  a  precedent.  In 
some  instances  the  entire  objection  reduced  to  a  word  seems 
to  be  that  it  opens  the  way  for  paternalism.  The  denuncia¬ 
tion  is  not  because  of  the  evil  inherent  in  the  law  itself  nor 
because  of  its  clear  unconstitutionality,  but  because  it  may 


INTRODUCTION 


17 


make  possible  other  laws  that  would  be  open  to  such  objec¬ 
tion.  The  argument  urged  by  those  who  advocate  such 
measures  is,  of  course,  that  each  such  law  should  stand  or 
fall  upon  its  own  merits,  not  be  accepted  solely  because  it 
resembles  some  law  already  in  force  nor  be  rejected  solely 
because  some  measure  similar  but  more  radical  may  follow. 
It  is  rare  for  the  courts  to  accept  this  reasoning.  Here  is  a 
situation  where,  on  the  one  hand,  a  law  is  urged  as  fitted  to 
meet  a  positive  need,  and  on  the  other  hand,  is  opposed  as 
opening  the  way  to  laws  not  needed  and  dangerous. 

A  situation  still  more  anomalous  may  easily  be  found. 
It  is  in  connection  with  freedom  of  contract.  While  courts 
generally  admit  that  such  a  right  is  not  an  absolute  one, 
they  are  still  very  reluctant  to  recognize  any  new  limitation. 
That  is  the  general  principle  upon  which  they  rest.  The 
laborer  must  have  the  same  liberty  of  contract  that  others 
have.  Now  the  legislature  charters  a  corporation,  giving 
it  in  many  respects  greater  powers  than  are  possessed  by  an 
individual.  These  powers  the  corporation  will  use  to  its 
own  advantage  in  bargaining  with  laborers  and  as  a  result 
laborers  are  virtually  coerced  into  accepting  such  conditions 
of  employment  as  are  offered.  Or  it  may  not  be  a  corpora¬ 
tion  that  has  the  advantage.  An  employer  may  be  in  posi¬ 
tion  to  dictate  the  terms  and  conditions  upon  which  em¬ 
ployment  will  be  given,  the  employee  being  left  to  accept 
the  conditions  without  modification  or  to  reject  them  and 
go  without  work.  A  one-industry  locality  under  centralized 
control  furnishes  the  clearest  instance  of  this.  The  inequal¬ 
ity  of  bargaining  becomes  evident  and  a  law  is  enacted  to 
equalize  the  situation.  It  may  be  to  shorten  hours  of  labor 
in  the  interests  of  health,  to  require  the  payment  of  wages 
in  money  or  at  certain  specified  intervals,  or  to  forbid  Sun¬ 
day  work  in  certain  occupations.  Both  the  community  and 
the  laborers  concerned  may  have  been  active  in  securing 


!g  AMERICAN  COURTS  IN  LABOR  CASES 

such  a  statute.  But  the  employer  appeals  to  the  court.  The 
basis  of  his  appeal  is  that  the  rights  of  the  laborer  have 
been  infringed  in  that  he  is  not  left  free  to  agree  to  work 
as  long  as  his  employer  may  wish  him  to,  or  under  the 
conditions  that  the  employer  may  see  fit  to  furnish.  Then 
the  court  hands  down  its  opinion  to  the  effect  that  any  law 
that  prevents  a  laborer  from  selling  his  labor  as  he  thinks 
best  is  an  infringement  of  his  constitutional  privileges  and 
therefore  not  only  void  but  vicious.  Such  cases  are  not 
brought  to  trial  by  the  laborer.  They  are  pushed  by  the 
employer.  Yet  seldom  has  the  court  appeared  to  recog¬ 
nize  the  peculiar  phase  of  the  situation :  an  employer  so 
concerned  in  preserving  the  constitutional  and  inalienable 
rights  of  his  employees  to  enjoy  the  utmost  liberty  of  enter¬ 
ing  freely  and  voluntarily  into  contracts.  The  concern  is 
so  great  that  he  is  willing  to  incur  the  expense  necessary 
to  carry  the  issue  to  the  highest  state  courts  and,  if  neces¬ 
sary,  to  the  federal  supreme  court  also.  Instead  of  sus¬ 
taining  a  law  clearly  demanded  by  the  conditions  and  use¬ 
ful  in  restoring  to  the  laborer  something  of  an  equality  of 
bargaining  power,  the  empty  phrase  about  freedom  of  con¬ 
tract  is  repeated  and  the  laborer  is  in  fact  turned  over  to 
the  employer  with  no  possible  choice  but  to  work  for  the 
terms  and  conditions  offered.  It  is  perhaps  at  this  point 
that  the  courts  have  most  to  accomplish  before  the  desired 
degree  of  progress  will  be  attained. 


CHAPTER  II 


The  Courts 

A  discussion  of  the  attitude  of  the  courts  toward  labor 
legislation  might  be  expected  to  begin  immediately  with  an 
analysis  of  cases.  But  the  difficulties  of  such  an  analysis 
arise  not  merely  from  the  subject-matter  of  the  laws  or 
the  legal  principles  involved  in  the  trials,  but  from  the 
character  and  function  of  the  courts  themselves.  To  under¬ 
stand  this  branch  of  the  government  at  the  outset  is  of 
prime  importance.  This  leads  to  the  broad  question  of  the 
court’s  duty  toward  legislation  and  to  its  place  in  our  sys¬ 
tem  of  government  as  one  of  the  three  grand  divisions  of 
our  governmental  machinery.  Thus  at  the  outset  the  prob¬ 
lem  takes  us  far  into  the  principles  of  political  science  and 
their  application  to  the  art  of  government.  Obviously  it 
would  be  impossible  as  well  as  unnecessary  in  this  work  to 
enter  into  a  discussion  of  these  principles  and  their  appli¬ 
cation.  It  does  not  seem  wise,  however,  to  pass  the  topic 
without  some  consideration. 

The  work  of  discussing  and  perhaps  of  criticizing  the 
courts  is  one  that  must  be  entered  upon  with  extreme  cau¬ 
tion.  There  is  need,  in  the  first  place,  of  a  spirit  of  honesty 
and  fairness.  Our  courts  occupy  a  peculiar  position  in  our 
governmental  polity.  Absolute  separation  and  independ¬ 
ence  of  function  is  impossible.  In  a  very  direct  and  im¬ 
portant  way  the  judiciary  exercises  a  deep  influence  over 
each  of  the  other  two  divisions.  The  courts  of  America 
have  a  right  to  command,  and  they  do,  in  fact,  command 

19 


20 


AMERICAN  COURTS  IN  LABOR  CASES 


the  highest  respect  of  all  citizens.  To  them  we  owe  a  politi¬ 
cal  debt  that  is  beyond  computation.  Without  detracting 
from  the  force  of  this  statement  it  should  also  be  recognized 
that  reverence  and  respect  for  the  courts  do  not  preclude  a 
discussion  of  their  activity  coupled  with  honest  and  tem¬ 
pered  criticism.  A  worshiping  of  the  court  as  something 
superhuman,  on  the  one  hand,  and  an  unbridled,  indiscrimi¬ 
nate  criticism  on  the  other,  are  alike  to  be  avoided.  Tem¬ 
pered,  discriminating  criticism  fairly  and  honestly  offered 
is  what  is  needed  and  what  is  attempted  in  the  following 
pages. 

It  is  a  trite  statement  that  courts  are  bound  by  precedent. 
Many  excellent  reasons  have  been  urged  why  this  should 
be  so  and  of  these  reasons  many  are  thoroughly  sound.  To 
the  constitutional  lawyer  there  can  be  no  important  coun¬ 
tervailing  considerations.  Many  cases  have  been  decided 
solely  on  precedent,  even  when  reason  seemed  to  dictate  to 
the  judge  an  opposite  view.  A  striking  instance  of  the 
force  of  precedent  is  shown  in  the  case  of  Willcutt  v.  Brick¬ 
layers’  Union.  The  decision  was  made  by  a  majority  in 
accordance  with  a  principle  held  by  the  same  court  in  a 
former  case.  Two  members,  the  Chief  Justice  and  one 
other,  dissented  and  a  third  member  of  the  court,  Judge 
Loring,  wrote  a  separate  opinion  setting  forth  the  reason 
for  his  voting,  with  the  majority.  In  this  he  says: 

For  the  reasons  stated  in  the  opinion  of  Mr.  Justice  Sheldon, 
I  should  agree  with  the  conclusion  there  reached  [the  dissent¬ 
ing  opinionj  were  it  not  for  the  recent  decision  made  by  this 
court  ...  In  my  opinion  the  decision  in  [the  former  case] 
ought  not  to  be  overruled  in  the  case  at  bar  although  it  was 
wrong,  provided  laborers  and  labor  unions  will  not  suffer 
injustice  from  our  standing  by  it.  The  evils  which  ensue 
from  overruling  a  wrong  decision  where  no  injustice  is  involved 
in  following  it  are  greater  than  those  which  come  from  stand- 


THE  COURTS 


21 


ing  by  it.  It  would  be  hard  to  measure  the  disastrous  conse¬ 
quences  to  the  administration  of  justice  if  it  were  thought 
that  a  change  in  the  personnel  of  the  court  is  to  be  the  oc¬ 
casion  for  rearguing  what  has  been  decided. 

Apparently  the  same  view  is  held  by  Chief  Justice  Cullen 
of  the  New  York  court  of  appeals.  In  the  opinion  in 
People  v.  Grout  he  points  out  the  great  variety  of  labor 
cases  that  come  before  the  court  and  the  full  discussion  that 
had  been  given  to  the  principles  involved.  It  is  admitted  that 
the  arguments  used  to  support  the  propositions  are  not  in 
agreement  among  themselves.  “  There  are  at  times  found 
in  the  opinion  in  one  case  dicta  in  conflict  with  that  found 
in  the  opinion  in  another.”  Yet  “  there  is  not  inconsistency 
in  the  several  decisions  made  by  us,  so  far  as  the  proposi¬ 
tions  actually  determined  are  concerned.”  Having  admitted 
thus  the  variety  of  view  and  at  the  same  time  emphasized 
the  consistency  of  decisions  actually  made,  the  justice  adds 
that  in  the  case  at  bar  it  seems  that 

no  good  purpose  would  be  subserved  by  now  reopening  the 
whole  discussion  of  the  subject,  nor  does  there  appear  much 
prospect  that  by  such  action  we  would  finally  reach  harmony 
among  ourselves.  I  think  the  wise  course  is  to  adhere  strictly 
to  the  decisions  actually  made  by  the  court  without  further 
examination  of  the  general  questions  involved,  and  regardless 
of  the  individual  opinions  of  our  several  members. 

The  argument  in  the  opinion  concludes  that  the  decision 
in  the  case  can  stand  only  on  the  ground  of  precedent,  and 
adds,  “  I  feel  it  my  duty  to  follow  it  regardless  of  my  own 
opinion  on  the  question.” 

Courts  of  one  state  in  the  absence  of  precedent  within 
the  state  often  follow  opinions  expressed  by  courts  of  an¬ 
other  jurisdiction  when  such  opinions  are  acceptable  in  prin¬ 
ciple.  The  instances  of  this  are  numerous.  The  rule  how- 


22 


AMERICAN  COURTS  IN  LABOR  CASES 


ever  is  not  universal.  It  appears  to  rest  very  much  in  the 
discretion  of  the  court  what  the  influence  of  such  opinions 
shall  be.  That  is  the  same  as  saying  that  it  depends  upon 
the  personal  factor  of  the  individual  judge.  Professional 
courtesy  may  temper  the  criticism  or  the  reason  for  re¬ 
jecting  the  view,  to  be  sure,  yet  the  rejection  is  none  the 
less  sure. 

While  we  entertain  a  profound  respect  for  the  courts  of  our 
sister  states,  we  do  not  feel  called  upon  to  yield  our  convic¬ 
tion  of  right  to  a  blind  adherence  to  precedent ;  especially  when 
they  are,  in  our  opinion,  opposed  to  principle;  and  the  reason¬ 
ing  by  which  they  are  endeavored  to  be  supported  is  by  no 
means  satisfactory  or  convincing. 

This  view  was  expressed  by  the  California  supreme  court 
in  1858.  At  that  time  a  dissenting  opinion  was  written. 
In  1 86 1  in  another  case  the  same  court  accepted  as  the  pre¬ 
vailing  view  the  dissenting  opinion  of  1858. 

In  1889  the  supreme  court  of  California  was  called  upon 
to  consider  the  validity  of  a  statute.  In  the  argument  the 
judges’  attention  was  called  to  the  fact  that  “  this  very  sta¬ 
tute  ”  had  been  upheld  by  the  circuit  court  of  the  United 
States.  The  court  refused  to  accept  the  binding  force  of 
this  as  a  precedent,  declaring  that  “  while  we  have  the 
greatest  respect  for  the  able  judge  who  wrote  the  opinion, 
yet  it  is  not  binding  on  us  as  a  precedent,  and  the  reasoning 
therein  does  not  convince  us  of  its  correctness,  nor,  in  our 
opinion,  do  the  authorities  therein  cited  support  it.”  Some¬ 
what  more  non-committal  is  the  following  utterance,  from 
the  same  court,  “  Decided  cases  are,  in  some  sense,  evidence 
of  what  the  law  is.  We  say,  in  some  sense,  because  it  is 
not  so  much  the  decision  as  it  is  the  reasoning  upon  which 
the  decision  is  based,  which  makes  it  authority,  and  requires 
it  to  be  respected.” 


THE  COURTS 


23 


That  previous  cases  decided  in  the  same  state  are  gen¬ 
erally  binding  is  beyond  question.  That  cases  decided  in 
other  states  may  or  may  not  be  binding  is  evident.  That 
courts  never  reverse  themselves  is  of  course  contrary  to 
fact.  The  basis  then  of  this  binding  force  of  precedent 
must  be  finally  the  reasonableness  of  the  position  taken  and 
the  relative  advantage  of  reversal  or  conformity.  This  lies 
entirely  for  the  judges  to  determine,  and  the  conclusion  is 
necessarily  affected  by  the  personal  equation.  The  en¬ 
deavor  to  conceal  or  minimize  a  reversal  of  opinion  may 
contribute  to  legal  continuity.  It  is  doubtful  if  the  advan¬ 
tage  so  gained  is  not  more  than  offset  by  a  loss  of  respecc 
on  the  part  of  those  who  honor  the  facts  and  truth  even 
more  than  consistency. 

What  attitude  the  court  shall  assume  toward  the  legisla¬ 
ture  is  a  question  upon  which  various  views  are  expressed 
in  the  opinions.  It  is  also  a  question  of  far-reaching  im¬ 
portance.  The  adjustment  of  power  between  legislature 
and  court  in  a  government  like  ours  is  a  delicate  matter. 
It  is  also  difficult  to  preserve  after  it  has  once  been  made. 
That  adjustment  is  made  in  the  constitution.  Its  preser¬ 
vation  is  largely,  if  not  entirely,  in  the  hands  of  the  court. 
Constitutionally  the  question  is  important.  It  is  of  no  less 
importance  socially,  since  it  involves  the  protection  and  the 
advancement  of  social  welfare,  and  the  relative  ability  of 
legislature  and  court  to  secure  those  advantages.  On  this 
question  there  is  no  serious  disagreement  among  the  courts. 
At  any  rate  when  discussing  the  proposition  as  a  general 
one  there  is  always  practical  agreement.  It  is  when  an  ap¬ 
plication  of  the  principle  is  to  be  made  that  declarations 
appear  which  indicate  an  attitude  of  mind  not  always  in 
accordance  with  the  theory.  Naturally  the  court  will  be 
jealous  of  any  infringement  upon  what  it  conceives  to  be 
its  rights.  Further,  it  will  naturally  be  more  ready  to 


24 


AMERICAN  COURTS  IN  LABOR  CASES 


claim,  than  other  departments  will  be  to  concede,  that  cer¬ 
tain  matters  come  within  its  province.  This  adjustment 
from  the  practical  side  has  been  progressing  from  the  be¬ 
ginning  and  has  been  assisted  by  a  variety  of  cases,  not 
being  confined  to  labor  decisions  alone.  Here  again  a  com¬ 
plete  discussion  lies  outside  the  present  purpose.  The  de¬ 
termination  to  exercise  their  own  right  is  a  topic  upon  which 
the  courts  in  their  written  opinions  seldom  touch.  When 
reverted  to  the  statements  are  brief  but  positive  that  the 
court  will  discharge  its  duty.  In  such  situations  there  is 
often  implied  in  the  expressions  a  conviction  of  superior  in¬ 
sight.  The  legislature  may  think  that  it  is  right.  That 
does  not  make  it  right.  “  Although  the  legislature,”  says 
Chief  Justice  Zane  of  Utah,  quoting  the  New  York  court 
of  appeals,  “  may  declare  [the  right]  to  be  public,  that  does 
not  necessarily  determine  its  character.  It  must,  in  fact, 
be  public,  and,  if  it  be  not,  no  legislative  fiat  can  make  it 
so.”  This  is  a  typical  statement  illustrative  of  the  attitude 
of  many  judges  that  the  view  of  the  court  is  the  absolute 
right,  while  the  legislature  is  making  a  futile  effort  to  de¬ 
clare  wrong  to  be  right.  What  is  really  said,  of  course, 
is  that  the  view  that  the  court  entertains  is  not  the  same  as 
that  of  the  legislature,  and  as  the  court  decides  which  is 
most  likely  to  be  right,  the  verdict  is  in  favor  of  itself. 

One  other  instance  of  this  attitude  is  found  in  the  opin¬ 
ion  of  the  United  States  supreme  court.  The  so-called 
Bakeshop  law  had  been  passed  by  the  legislature  of  New 
York  state  and  had  been  upheld  by  the  courts  of  that  state. 
The  United  States  supreme  court  annulled  the  law.  Such 
laws,  writes  Justice  Peckham, 

are  not  saved  from  condemnation  by  the  claim  that  they  are 
passed  in  the  exercise  of  the  police  power  and  upon  the  sub¬ 
ject  of  the  health  of  the  individual  whose  rights  are  interfered 
with,  unless  there  be  some  fair  ground,  reasonable  in  and  of 


THE  COURTS 


25 

itself,  to  say  that  there  is  material  danger  to  the  public 
health,  or  to  the  health  of  the  employees. 

The  ground  for  such  a  law  must  not  only  seem  reason¬ 
able  to  legislators,  and  even  to  judges  of  state  courts,  it 
must  actually  be  in  and  of  itself  reasonable.  If  the  state¬ 
ment  has  any  meaning,  it  must  be  that  what  appears  rea¬ 
sonable  to  others  must  also  appear  reasonable  to  the  court. 
That  may  seem  rather  finite,  but  it  certainly  sounds  more 
rational  to  the  reader  of  the  opinion.  It  can  hardly  be  pos¬ 
sible  that  a  court  can  be  endowed  with  a  special  faculty  for 
determining  between  the  absolute  and  the  relative,  and  for 
declaring  positively  what  the  absolute  is.  It  is  doubtful  if 
courts  could  retain  the  respect  to  which  they  are  entitled,  if 
such  expressions  were  frequent,  and  really  indicated  the 
mental  attitude  of  judges  as  a  body. 

It  is  encouraging  to  turn  to  other  opinions  and  there 
find  other  views.  The  danger  seems  to  be  recognized  by 
the  court  itself  in  Minnesota  when  Judge  Mitchell  admits 
that  courts, 

influenced  by  such  terms  of  illusive  meaning  as  “  monopolies/’ 
“  trusts,”  “  boycotts,”  “  strikes,”  and  the  like,  may  be  led  to 
transcend  the  limits  of  their  jurisdiction,  and,  like  the  court 
of  king’s  bench  in  Bagg’s  Case  assume  that,  on  general  prin¬ 
ciples,  they  have  authority  to  correct  or  reform  everything 
which  they  may  deem  wrong,  or,  as  Lord  Ellsmere  puts  it, 
“  to  manage  the  state.” 

But  some  courts  go  further  than  the  expression  of  a  fear 
that  they  may  become  reformers.  In  a  large  number  of  in¬ 
stances  there  is  positively  expressed  a  recognition  of  the 
legislature’s  function  as  a  representative  body.  Many  in¬ 
teresting  and  suggestive  extracts  might  be  inserted  to  show 
the  wholesome  tendency  on  the  part  of  many  judges  to 
recognize  that  the  legislature  has  a  certain  province  quite 


26 


AMERICAN  COURTS  IN  LABOR  CASES 


apart  from  that  of  the  court  and  which  the  court  should  not 
enter.  In  Parkinson  v.  Building  Trades,  Chief  Justice 
Beatty  of  California  finds  an  instance  where  the  matter  is 
“  outside  the  province  of  the  courts,  and  as  with  regard  to 
other  questions  of  economic  or  political  aspect,  the  remedy, 
if  a  remedy  is  needed,  must  be  found  by  the  legislature.” 
In  another  opinion  in  the  same  case,  Judge  Sloss  says :  “  If 
there  be,  in  such  combinations,  evils  which  should  be  re¬ 
dressed,  the  remedy  is  to  be  sought,  as  to  some  extent  it  has 
been  sought,  by  legislation.  If  the  conditions  require  new 
laws,  those  laws  should  be  made  by  the  lawmaking  power, 
not  by  the  courts.” 

The  difficulty  of  course  reaches  its  climax  when  the  legis¬ 
lature  has  deemed  a  law  to  be  necessary,  and  the  courts  are 
asked  to  pass  upon  it.  That  doubt  should  be  dissolved  in 
favor  of  the  law  is  a  principle  that  has  the  authority  of  the 
United  States  supreme  court.  Chief  Justice  Marshall  is 
quoted  as  saying  in  the  Dartmouth  College  case :  “  In  no 
doubtful  case  would  [the  court]  pronounce  a  legislative  act 
to  be  contrary  to  the  constitution.”  The  same  court  in  an¬ 
other  case  (Sinking  Fund  Cases)  is  quoted:  “Every  pos¬ 
sible  presumption  is  in  favor  of  the  validity  of  a  statute, 
and  this  continues  until  the  contrary  is  shown  beyond  a 
rational  doubt.”  (Holden  v.  Hardy.) 

Judge  Lucas  of  West  Virginia  refers  to  a  former  opinion 
of  that  court  in  an  extract  of  some  length.  In  their  former 
opinion,  declares  the  judge,  it  was  held: 

(i)  It  is  the  duty  of  a  court  to  uphold  a  statute  when  the 
conflict  between  it  and  the  constitution  is  not  clear,  and  the 
implication  which  must  always  exist,  that  no  violation  has  been 
intended  by  the  legislature,  may  require  in  some  cases,  where 
the  meaning  of  the  constitution  is  in  doubt,  to  lean  in  favor  of 
such  a  construction  of  the  statute  as  might  not,  at  first  view, 
seem  most  obvious  and  natural.  Where  the  meaning  of  the 


THE  COURTS 


27 


constitution  is  clear,  the  court,  if  possible,  must  give  the 
statute  such  a  construction  as  will  enable  it  to  have  effect.  (2) 
It  is  always  to  be  presumed  that  the  legislature  designed  the 
statute  to  take  effect,  and  not  be  a  nullity.  (3)  Wherever  an 
act  of  the  legislature  can  be  so  construed  and  applied  as  to 
avoid  a  conflict  with  the  constitution,  and  give  it  the  force  of 

law,  such  construction  will  be  adopted  by  the  court . 

(6)  The  expediency  or  inexpediency  of  an  act  is  a  question 
for  the  legislature,  and  not  for  the  court.  .  .  .  (14)  The  judi¬ 
ciary  cannot  inquire  into  the  motives  and  necessities  which 
may  have  superinduced  the  passage  of  an  act.  (15)  The  courts 
have  no  right  to  set  aside,  to  arrest,  or  nullify  a  law  passed  in 
relation  to  a  subject  within  the  scope  of  the  legislative  author¬ 
ity,  on  the  ground  that  it  conflicts  with  their  notions  of  natural 
right,  absolute  justice,  or  sound  morality. 

These  principles,  thus  clearly  announced  by  this  court,  are 
sustained  by  all  the  best  authorities,  by  the  elementary  writers, 
and  by  the  supreme  court  of  the  United  States. 

Judge  Barnes  of  Nebraska,  after  referring  to  the  func¬ 
tions  of  the  three  departments  of  government,  asserts  that 

courts  should  never  usurp  legislative  functions,  and  before 
declaring  a  law  unconstitutional,  we  should  be  fully  convinced 
that  it  clearly  conflicts  with  some  provision  of  the  fundamental 
law  ...  If  after  a  careful  consideration  of  the  question  in 
all  of  its  bearings,  the  matter  is  left  in  doubt,  we  should  resolve 
such  doubt  in  favor  of  the  law.  .  .  .  There  is  little  reason, 
under  our  system  of  government,  for  placing  a  narrow  inter¬ 
pretation  on  [the  police]  power,  or  restricting  its  scope  so  as 
to  hamper  the  legislature  in  dealing  with  the  varying  necessi¬ 
ties  of  society  and  new  circumstances  as  they  arise,  calling  for 
legislative  intervention  in  the  public  interest.  The  moment 
the  police  power  is  destroyed  or  curbed  by  fixed  or  rigid  rules, 
a  danger  will  be  introduced  into  our  system  which  would  be  far 
greater  than  the  results  arising  from  an  occasional  mistake 
by  legislative  bodies  in  exercising  such  power. 


28 


AMERICAN  COURTS  IN  LABOR  CASES 


Other  brief  extracts  will  serve  to  show  the  views  of  other 
judges. 

This  statute  was  evidently  conceived  and  enacted  for  the 
purpose  of  correcting  some  evil.  .  .  The  legislature  is  always 
presumed  to  have  intended  a  constitutional  exercise  of  power ; 
and  laws  will  be  so  construed  as  to  make  their  provisions  law¬ 
ful  if  possible.  (Shaffer  &  Munn  v.  Union  Mining  Co.) 

The  courts  are  frequently  confronted  with  the  temptation  to 
substitute  their  judgment  for  that  of  the  legislature.  A  given 
statute,  though  plainly  within  the  legislative  power,  seems  so 
repugnant  to  a  sound  public  policy  as  to  strongly  tempt  the 
court  to  set  aside  the  statute,  instead  of  waiting,  as  the  spirit 
of  our  institutions  requires,  until  the  people  can  compel  their 
representatives  to  repeal,  the  obnoxious  statute.  (People  v. 
Lochner.) 

Whether  or  not  this  be  wise  legislation  it  is  not  the  province 
of  the  court  to  inquire.  Under  our  systems  of  government 
the  courts  are  not  concerned  with  the  wisdom  or  policy  of 
legislation.  (Harlan,  dissenting  view,  Lochner  v.  People.) 

So,  also,  if  it  be  said  that  a  statute  like  the  one  before  us  is 
mischievous  in  its  tendencies,  the  answer  is  that  the  respon¬ 
sibility  therefor  rests  upon  legislators,  not  upon  the  courts. 
No  evils  arising  from  such  legislation  could  be  more  far- 
reaching  than  those  that  might  come  to  our  system  of  gov¬ 
ernment  if  the  judiciary,  abandoning  the  sphere  assigned  to  it 
by  the  fundamental  law,  should  enter  the  domain  of  legisla¬ 
tion,  and,  upon  grounds  merely  of  justice  or  reason  or  wis¬ 
dom,  annul  statutes  that  had  received  the  sanction  of  the 
people’s  representatives.  We  are  reminded  by  counsel  that  it 
is  the  solemn  duty  of  the  courts  in  cases  before  them  to  guard 
the  constitutional  rights  of  the  citizen  against  merely  arbitrary 
power.  That  is  unquestionably  true.  But  it  is  equally  true — 
indeed,  the  public  interests  imperatively  demand — that  legisla¬ 
tive  enactments  should  be  recognized  and  enforced  by  the 
courts  as  embodying  the  will  of  the  people,  unless  they  are 
plainly  and  palpably,  beyond  all  question,  in  violation  of  the 
fundamental  law  of  the  Constitution.  (Atkin  v.  State.) 


THE  COURTS 


29 


The  law  may  have  been  unwise  or  injudicious ;  with  that  we 
have  nothing  to  do.  If  it  were  passed  by  the  legislature  in  the 
exercise  of  a  police  power,  then  we  have  no  authority  to  annul 
the  act.  (Peel  Splint  Co.  v.  State.) 

A  somewhat  different  angle  is  taken  in  the  opinion  in 
Wenham  v.  State.  It  is  inserted  to  close  this  section. 

The  members  of  the  legislature  come  from  no  particular 
class.  They  are  elected  from  every  portion  of  the  state,  and 
come  from  every  avocation  and  from  all  the  walks  of  life. 
They  have  observed  the  conditions  with  which  they  are  sur¬ 
rounded,  and  know  from  experience  what  laws  are  necessary 
to  be  enacted  for  the  welfare  of  the  communities  in  which 
they  reside.  7 

Though  in  so  many  ways  the  courts  have  given  expres¬ 
sion  to  their  opinion  that  the  legislature  has  a  distinct  and 
separate  province,  and  that  when  acting  within  that  pro¬ 
vince  it  is  not  to  be  interfered  with,  yet  it  must  not  be  con¬ 
cluded  that  this  recognition  causes  all  difficulties  to  dis¬ 
appear.  There  is  the  line  of  demarcation  to  be  established, 
and  that  task  lies  almost,  if  not  quite  entirely,  with  the 
courts.  “  It  is  not  for  the  legislature  alone  to  declare  public 
policy,”  insists  Justice  Dodge  in  State  v.  Kreutzberg.  Pub¬ 
lic  policy  comes  so  intimately  in  touch  with  constitution¬ 
ality  that  it  needs  but  the  decision  of  the  court  that  con¬ 
stitutionality  is  involved  and  the  court  has  jurisdiction. 
That  decision  will  necessarily  rest  in  part  at  least  upon  the 
personal  views  of  the  individuals  who  sit  as  judges. 

The  declarations  that  have  been  cited  above  are  all  in 
general  terms.  Some  of  them  led  the  court  to  decide  in 
favor  of  the  law  before  it,  others  were  stated  preceding  the 
rendering  of  an  opinion  that  the  legislature  had  exceeded 
its  authority.  The  statements  of  course  have  some  binding 
force  as  being  the  views  of  judges  stated  in  general  terms. 


30 


AMERICAN  COURTS  IN  LABOR  CASES 


It  is  to  be  presumed  that  these  judges  would  be  bound  by 
them  in  a  decision.  Yet  in  practice  there  is  always  room 
for  such  individual  interpretation  as  will  result  in  setting 
aside  the  principle  entirely  in  the  case  and  siding  against  the 
legislature. 

One  other  point  must  be  mentioned.  It  must  not  be  over¬ 
looked  in  any  discussion  of  courts  in  relation  to  that  por¬ 
tion  of  social  legislation  that  is  called  labor  legislation  that 
courts  have  in  our  political  polity  a  definite  field  marked 
out  for  them. 

It  is  the  province  of  the  courts,  when  the  question  is 
properly  presented,  to  define  and  protect  the  rights  of  those 
brought  within  their  jurisdiction.  In  discharging  this  duty, 
judges  can  only  decide  on  established  principles  and  rules,  and 
are  not  empowered  to  create  rights  or  initiate  new  powers  or 
privileges.  That  is  a  legislative,  not  a  judicial,  function.  It 
would  seem  to  be  unnecessary  to  state  such  elementary  truths, 
were  it  not  that  other  views  appear  to  be  entertained  by  some. 
(Barr  v.  Essex  Trades  Council.) 

Chief  Justice  Grant  of  Michigan  insists  upon  the  same 
point  when  he  says : 

The  aim  of  the  courts  has  been,  not  to  introduce  into  their 
decisions  new  principles,  but  to  apply  old  and  well-established 
ones,  for  the  equal  protection  of  all  persons,  [and  quotes  Judge 
Ashurst  in  saying]  “  Where  cases  are  new  in  their  principle, 
then  I  admit  that  it  is  necessary  to  have  recourse  to  legisla¬ 
tive  interposition  in  order  to  remedy  the  grievance ;  but  where 
the  case  is  only  new  in  the  instance,  and  the  only  question  is 
upon  the  application  of  a  principle  recognized  in  the  law  to 
such  new  case,  it  will  be  just  as  competent  to  courts  of  justice 
to  apply  the  principle  to  any  case  which  may  arise  two  cen¬ 
turies  hence  as  it  was  two  centuries  ago.  If  it  were  not  so, 
we  ought  to  blot  out  of  our  law  books  one-fourth  part  of  the 


THE  COURTS 


31 

cases  that  are  to  be  found  in  them/’  (Beck  v.  Railway 
Teamsters.) 

To  what  extent  courts  are  amenable  to  public  opinion  is 
a  matter  of  great  importance,  and  one  that  has  not  been 
passed  entirely  without  comment.  Judge  Vann  of  New 
York  says: 

The  prejudice  said  to  exist  in  some  minds  against  interfer¬ 
ence  by  courts  of  equity  in  labor  disputes  should  not  be  heeded; 
for  if,  upon  well-settled  principles,  the  courts  have  jurisdic¬ 
tion,  they  must  exercise  it,  or  refuse  to  do  their  duty.  Pub¬ 
lic  opinion  may  express  itself  in  legislation,  but  not  in  judicial 
decisions. 

Justice  Holmes  says,  in  dissenting  from  the  majority 
opinion  of  the  United  States  supreme  court  which  held 
against  the  New  York  Bakeshop  law, 

This  case  is  decided  upon  an  economic  theory  which  a  large 
part  of  the  country  does  not  entertain.  If  it  were  a  question 
whether  I  agree  with  that  theory,  I  should  desire  to  study  it 
further  and  long  before  making  up  my  mind.  But  I  do  not 
conceive  that  to  be  my  duty,  because  I  strongly  believe  that  my 
agreement  or  disagreement  has  nothing  to  do  with  the  right 
of  a  majority  to  embody  their  opinions  in  law.  It  is  settled 
by  various  decisions  of  this  court  that  state  constitutions  and 
state  laws  may  regulate  life  in  many  ways  which  we  as  legis¬ 
lators  might  think  as  injudicious,  or  if  you  like  as  tyrannical, 
as  this,  and  which,  equally  with  this,  interfere  with  the  liberty 
to  contract.  .  .  .  Some  of  these  laws  [instances  of  legal  in¬ 
fringement  on  right  to  contract  just  referred  to]  embody  con¬ 
victions  or  prejudices  which  judges  are  likely  to  share.  Some 
may  not.  But  a  Constitution  is  not  intended  to  embody  a  par¬ 
ticular  economic  theory,  whether  of  paternalism  and  the  or¬ 
ganic  relation  of  the  citizen  to  the  state  or  of  laissez  faire. 
It  is  made  for  people  of  fundamentally  different  views,  and 
the  accident  of  our  finding  certain  opinions  natural  and  fami- 


32 


AMERICAN  COURTS  IN  LABOR  CASES 


liar,  or  novel,  and  even  shocking,  ought  not  to  conclude  our 
judgment  upon  the  question  whether  statutes  embodying  them 
conflict  with  the  Constitution  of  the  United  States. 

Further  in  indicating  this  conformity  to  a  public  opin¬ 
ion  there  is  the  recent  utterance  of  Chief  Justice  Cullen  of 
New  York: 

I  fear  that  the  many  outrages  of  labor  organizations,  or  of 
some  of  their  members,  have  not  only  excited  just  indigna¬ 
tion,  but  at  times  have  frightened  courts  into  plain  legal  in¬ 
consistencies,  and  into  the  enunciation  of  doctrines,  which,  if 
asserted  in  litigations  arising  under  any  other  subject  than 
labor  legislation,  would  meet  scant  courtesy  or  consideration. 

Judge  Holmes,  when  sitting  on  the  Massachusetts  bench, 
spoke  of  “  judicial  reasonings  ”  as  seeming  to  him  “  often 
to  be  inadequate.” 

The  true  grounds  of  decision  are  considerations  of  policy 
and  of  social  advantage,  and  it  is  vain  to  suppose  that  solu¬ 
tions  can  be  attained  merely  by  logic  and  general  propositions 
of  law  which  nobody  disputes.  Propositions  as  to  public  policy 
rarely  are  unanimously  accepted,  and  still  more  rarely  if  ever 
are  capable  of  unanswerable  proof.  They  require  a  special 
training  to  enable  anyone  even  to  form  an  intelligent  opinion 
about  them. 

To  bring  this  chapter  to  a  close  and  also  to  come  back 
to  the  point  of  starting,  perhaps  the  whole  matter  of  diffi¬ 
culty  has  been  expressed  best  by  Chief  Justice  Parker  of 
New  York.  After  stating  the  view  already  quoted  in  this 
chapter  to  the  effect  that  the  court  is  bound  to  consider  fav¬ 
orably  the  opinions  of  legislatures,  he  refers  to  the  courts 
in  more  general  terms. 

In  the  early  history  of  this  country  eminent  writers  gave 
expression  to  the  fear  that  the  power  of  the  courts  to  set 
aside  the  enactments  of  the  representatives  chosen  to  legislate 


THE  COURTS 


33 


for  the  people  would  in  the  end  prove  a  weak  point  in  our 
governmental  system,  because  of  the  difficulty  of  keeping  the 
exercise  of  such  great  power  within  its  legitimate  bounds.  So 
far  in  our  judicial  history  it  must  be  said  that  the  courts 
have,  in  the  main,  been  conservative  in  passing  upon  legis¬ 
lation  attacked  as  unconstitutional ;  but  occasionally,  and 
especially  when  a  case  is  one  on  the  border  line,  it  is  quite 
possible  that  the  judgment  of  the  court  that  the  legislation  is 
unwise  may  operate  to  carry  the  decision  to  the  wrong  side 
of  that  border  line.  Certain  it  is  that  the  courts  have  greatly 
extended  their  jurisdiction  over  many  administrative  acts  that 
were  originally  supposed  not  to  present  cases  for  the  court  to 
pass  upon,  and  in  that  way  the  courts  have  come  to  play  a 
very  important  part  in  state  and  municipal  administration. 

Confronted  with  the  varied  expressions  quoted  in  the 
preceding  pages,  one  is  justified  in  concluding  that  the 
courts  are  not  sure  of  themselves  and  that  there  is  lack  of 
unanimity  in  their  views.  This  must  not  be  attributed  to 
the  inefficiency  of  the  courts.  The  courts  are  feeling  their 
way  into  new  fields.  The  whirl  and  eddy  of  reform  confuse 
judges  as  they  confuse  all  of  us.  It  is  difficult  to  distinguish 
the  real  current  that  embodies  the  forward  movement. 
Naturally  the  responsibility  that  goes  with  the  heavy  duty 
of  deciding  these  weighty  questions  tends  to  conservatism. 
It  is  natural  as  it  is  right  that  courts  should  adopt  for  a 
motto :  “  It  is  better  that  a  thing  should  be  done  rightly 
than  that  it  should  be  done  quickly.”  In  an  effort  to  re¬ 
fute  the  “  criticism  of  the  law’s  obsolete  and  archaic  fea¬ 
tures  ”  the  critics  are  reminded  that  “  the  law  in  altering 
its  wonted  usage  or  in  deviating  from  its  fixed  policies  re¬ 
sembles  time  somewhat  which,  as  Bacon  says,  ‘  innovateth 
greatly  but  slowly  and  by  degrees  scarce  to  be  perceived.’  ”  1 

1  Mahon,  “The  Law  an  Expansive  Science,”  American  Law  Rev., 
vol.  xli,  p.  685,  Sept.-Oct.,  1907. 


34 


AMERICAN  COURTS  IN  LABOR  CASES 


It  is  doubtless  true  that  many  judges,  as  well  as  other  citi¬ 
zens,  view  the  courts  as  the  bulwark  against  extremes  of 
radicalism,  paternalism,  or  even  socialism.  Insofar  as  the 
courts  serve  this  purpose  they  are  of  inestimable  value. 
When  judges,  however,  go  so  far  as  to  insist  on  the  neces¬ 
sity  of  a  literal  preservation  of  the  ideas  of  the  past  un¬ 
changed,  there  immediately  arises  grave  danger  that  the 
bulwark  of  defense  may  become  an  engine  of  obstruction. 
Much  of  the  past  is  of  value,  but  the  present  loudly  demands 
changes  in  the  direction  of  a  greater  degree  of  socialization 
and  an  acceptance  of  newer  ideas  of  justice  and  equality. 
Yet  a  conserving  force  in  the  midst  of  these  changes  is  nec¬ 
essary.  Things  social  must  be  held  together  while  they  are 
progressing.  The  social  unity  so  far  as  it  has  been  at¬ 
tained  must  be  preserved.  Considering  how  difficult  it  is 
to  strike  a  balance  between  preserving  the  good  that  has 
been  achieved  in  the  past  and  keeping  the  way  open  for 
greater  good  in  the  future,  we  must  recognize  the  valuable 
service  which  our  courts  are  performing.  The  responsi¬ 
bility  which  rests  upon  them  is  enormous,  and  it  is  only  in 
the  light  of  this  responsibility  that  their  decisions  can  fairly 
be  judged.  It  is  with  full  recognition  of  these  considera¬ 
tions  that  the  work  of  the  following  chapters  is  now  en¬ 
tered  upon. 


CHAPTER  III 


Early  Cases — 1800-1850 

Labor  trials  are  now  so  frequent  that  they  often  fail  to  re¬ 
ceive  the  attention  they  deserve.  It  was  not  so  in  the  begin¬ 
ning  of  our  national  history.  During  the  half-century  between 
1800  and  1850  less  than  two  score  trials  occurred  of  which 
record  has  been  preserved.  In  variety  too  the  contrast  is 
striking.  Every  possible  phase  of  difficulty  comes  finally 
to  the  courts  in  these  days.  The  early  cases  dealt  with  but 
one  problem,  conspiracy.1 

The  circumstances  of  most  of  these  early  cases  were  sim¬ 
ilar.  The  workingmen  had  formed  an  association.  They 
had  refused  to  work  except  for  the  wages  that  they  de¬ 
manded  or  for  any  master  who  employed  a  non-member  of 
their  association.  One  case,  however,  presented  novel  fea¬ 
tures.  The  masters  had  joined  together  and  undertaken 
to  restore  wages  to  the  level  prevailing  before  they  had 
been  advanced  by  a  successful  strike.  Since  the  same  argu¬ 
ments  were  advanced  in  this  case  as  in  the  others,  it  was  no 
exception  so  far  as  the  application  of  the  law  was  con¬ 
cerned.  These  cases  were  not  decided  in  elaborate  opinions 
written  by  the  court.  Most  of  them  were  jury  trials  and  in 
its  charge  to  the  jury  the  court  usually  explained  its  inter¬ 
pretation  of  the  law.  In  the  arguments  by  the  counsel  for 

1  A  complete  record  of  these  cases  is  available  in  volumes  iii  and  iv 
of  A  Documentary  History  of  American  Industrial  Society.  The 
Arthur  H.  Clark  Company.  In  these  volumes  may  be  found  either 
the  record  of  or  the  reference  to  every  known  labor  case  that  occurred 
prior  to  1842. 


35 


AMERICAN  COURTS  IN  LABOR  CASES 


36 

each  side  elaborate  statements  of  the  conflicting  claims  were 
often  given,  however,  and  some  of  these  have  been  pre¬ 
served. 

The  organizations  that  were  particularly  aggressive  in 
these  early  days  were  among  boot  and  shoe  workers,  hat 
makers,  spinners  and  weavers.  Eight  cases  were  against 
cordwainers,  or  boot  and  shoe  makers,  and  were  tried  in 
various  cities  in  Pennsylvania,  New  York,  Maryland  and 
Massachusetts. 

In  the  very  first  of  these  cases,  1806,  involving  some 
cordwainers  in  Philadelphia — the  first  known  trial  of  wage 
earners  for  conspiracy  in  this  country — opposing  views  of 
counsel  appear  in  the  following  statements.  The  prosecu¬ 
tion  contended 

that  no  man  is  at  liberty  to  combine,  conspire,  confederate, 
and  unlawfully  agree  to  regulate  the  whole  body  of  workmen 
in  the  city.  The  defendants  are  not  indicted  for  regulating 
their  own  individual  wages,  but  for  undertaking  by  a  com¬ 
bination  to  regulate  the  price  of  the  labor  of  others  as  well  as 
their  own.1  f 

The  defense  asserted  that  the  refusal  of  the  workmen  to 
labor  for  any  master  employing  a  journeyman  who  in¬ 
fringed  the  rules  of  the  society  to  which  they  belonged  was 
no  offense. 

There  is  no  crime  in  my  refusing  to  work  with  a  man  who  is 
not  of  the  same  association  with  myself.  Supposing  the 
ground  of  my  refusal  to  be  ever  so  unreasonable  or  ridiculous, 
...  to  be  in  reality,  mere  caprice  or  whim,  .  .  .  still  it  is  no 
crime.  The  motive  for  my  refusal  may  be  illiberal,  but  it 
furnishes  no  legal  foundation  for  a  prosecution :  I  cannot  be 
indicted  for  it.  Every  man  may  choose  his  company,  or  re- 


1  Doc.  Hist.,  vol.  iii,  p.  68. 


EARLY  CASES — 1800-1850 


37 


fuse  to  associate  with  any  one  whose  company  may  be  dis¬ 
agreeable  to  him,  without  being  obliged  to  give  a  reason  for 
•  •  •  •  » 
it :  and  without  violating  the  laws  of  the  land.1 

Each  side  sought  then  to  establish  that  the  law  supported 
his  proposition  as  against  that  of  his  opponent.  The  Eng¬ 
lish  law  was  cited  freely  to  show  that  the  acts  charged 
came  within  the  English  common  law  of  conspiracy  and 
that  the  English  common  law  held  in  the  state.  The  de¬ 
fense  set  up  the  claim  that  the  English  common  law  of  con¬ 
spiracy  was  not  clear  and  that  the  precedents  cited  did  not 
cover  the  case  at  bar.  More  than  that  it  opened  the  whole 
question  of  the  applicability  of  the  common  law  of  Eng¬ 
land  to  the  states  in  view  of  the  recent  political  separation 
and  the  breaking-off  of  certain  connections  of  common  law. 
The  difference  in  the  spirit  of  the  law  toward  working 
men  in  the  two  countries  was  also  emphasized.  Finally, 
the  patriotism  of  the  court  was  appealed  to  to  uphold  Amer¬ 
ican  liberty  rather  than  British  tyranny. 

The  line  of  reasoning  followed  in  the  earliest  case  was 
pursued  in  substance  by  the  opposing  parties  in  all  of  the 
cases.  Two  questions  were  always  present.  (1)  To  what 
extent  did  the  common  law  of  England  apply?  (2)  Ad¬ 
mitting  its  applicability,  what  was  the  value  or  even  the 
validity  of  the  precedents  cited  ?  The  second  of  these  ques¬ 
tions  was  brought  more  prominently  to  the  front  in  the 
earlier  cases.  In  later  cases,  the  earlier  decisions  were  ap¬ 
pealed  to  as  precedents. 

The  law  of  conspiracy  was  held  by  the  courts  to  apply 
to  these  cases  throughout  the  period,  the  only  difference 
being  with  reference  to  the  extent  of  its  application.  In 
the  charge  to  the  jury  in  the  first  of  these  cases  the  Recorder 
stated  that 


1  Doc.  Hist.,  vol.  iii,  pp,  150,  151. 


AMERICAN  COURTS  IN  LABOR  CASES 


38 

a  combination  of  workmen  to  raise  their  wages  may  be  con¬ 
sidered  in  a  two  fold  point  of  view :  one  is  to  benefit  them¬ 
selves ;  the  other  is  to  injure  those  who  do  not  join  their  so¬ 
ciety.  The  rule  of  law  condemns  both.  If  the  rule  be  clear, 
we  are  bound  to  conform  to  it  even  though  we  do  not  com¬ 
prehend  the  principle  upon  which  it  is  founded.  We  are  not 
to  reject  it  because  we  do  not  see  the  reason  of  it.  It  is 
enough,  that  it  is  the  will  of  the  majority.  It  is  law  because 
it  is  their  will — if  it  is  law,  there  may  be  good  reasons  for  it 
though  we  cannot  find  them  out.  .  .  .  One  man  determines 
not  to  work  under  a  certain  price  and  it  may  be  individually  the 
opinion  of  all :  in  such  a  case  it  would  be  lawful  in  each  to 
refuse  to  do  so,  for  if  each  stands  alone  either  may  extract 
from  his  determination  when  he  pleases.  In  the  turn-out  of 
last  fall,  if  each  member  of  the  body  had  stood  alone,  fet¬ 
tered  by  no  promises  to  the  rest,  many  of  them  might  have 
changed  their  opinion  as  to  the  price  of  wages  and  gone  to 
work ;  but  it  has  been  given  to  you  in  evidence,  that  they  were 
bound  down  by  their  agreement,  and  pledged  by  mutual  en¬ 
gagements,  to  persist  in  it,  however  contrary  to  their  own 
judgment.  The  continuance  in  improper  conduct  may  there¬ 
fore  well  be  attributed  to  the  combination.  The  good  sense 
of  those  individuals  was  prevented  by  this  agreement,  from 
having  its  free  exercise.^.  .  .  The  court  ...  all  stand  in¬ 
dependent  of  both  parties.  .  .  .  They  have  given  you  the  rule 
as  they  have  found  it  in  the  book,  and  it  is  now  for  you  [the 
jury]  to  say  whether  the  defendants  are  guilty  or  not.  The 
rule  they  consider  as  fixed.  They  cannot  change  it.1 

The  counsel  for  the  defense  in  the  New  York  Cord- 
wainers’  Case,  1809,  was  at  great  pains  to  point  out  the 
absurdity  of  some  phases  of  the  common  law  and  attempted 
to  show  the  unreasonableness  of  holding  the  customs  of 
generations  before  to  be  still  binding.  The  charge  of  the 
court,  given  by  the  mayor,  referred  particularly  to  this 


1  Doc.  Hist.,  vol.  iii,  pp.  233-236. 


EARLY  CASES— 1800-1850 


39 


view  and  made  it  clear  that  he  did  not  agree  with  it.  The 
English  common  law  was  the  birthright  of  “  our  imme¬ 
diate  ancestors.”  They  had  appealed  to  it  in  their  oppo¬ 
sition  to  England.  Further  than  this,  the  constitution  of 
the  state  made  the  matter  perfectly  clear  when  it  declared 
that  such  parts  of  the  common  law  of  England  as  well  as 
the  statute  law  and  the  acts  of  the  legislature  of  the  colony 
of  New  York  as  together  formed  the  law  of  the  colony  at 
the  time  of  its  independence  and  as  were  not  repugnant  to 
the  constitution  were  to  continue  the  law  of  the  state  until 
the  legislature  should  see  fit  to  alter  them.  By  the  law  as 
thus  established  the  principles  of  conspiracy  were  clear. 
According  to  this  principle,  he  maintained, 

there  were  two  points  of  view  in  which  the  offence  of  a  con¬ 
spiracy  might  be  considered;  the  one  where  there  existed  a 
combination  to  do  an  act  unlawful  in  itself  to  the  prejudice  of 
other  persons;  the  other  where  the  act  done  or  the  object  of  it 
was  not  unlawful,  but  unlawful  means  were  used  to  accom¬ 
plish  it.  As  to  the  first,  there  could  be  no  doubt  that  a  com¬ 
bination  to  do  an  unlawful  act  was  a  conspiracy.  The  second 
depended  on  the  common  principle,  that  the  goodness  of  the 
end  would  not  justify  improper  means  to  obtain  it.  .  .  .  The 
court  did  not  mean  to  say,  nor  did  the  facts  in  the  case  re¬ 
quire  them  to  decide,  whether  an  agreement  not  to  work,  ex¬ 
cept  for  certain  wages,  would  amount  to  this  offence  without 
any  unlawful  means  taken  to  enforce  it.1 

To  the  mind  of  the  mayor  the  unlawfulness  and  the  con¬ 
spiracy  lay  in  the  means  that  were  employed  by  the  strikers 
to  force  those  who  did  not  belong  to  the  society  to  become 
members. 

A  similar  view  was  expressed  by  the  judge  in  the  Pitts¬ 
burgh  Cordwainers’  Case,  1815. 


1  Doc.  Hist.,  vol.  iii,  pp.  382,  383. 


AMERICAN  COURTS  IN  LABOR  CASES 


40 

It  is  not  for  demanding  high  prices,  that  these  men  are 
indicted,  but  for  employing  unlawful  means  to  extort  those 
prices ;  for  using  means  prejudicial  to  the  community  .  .  .  Upon 
the  whole,  that  this  is  an  indictable  offense  at  the  common 
law,  we  have  no  doubt.  It  was  never  doubted  but  “  that 
where  diverse  persons  confederate  together  by  indirect  means 
to  impoverish  or  prejudice  a  third  person,  or  to  do  acts  un¬ 
lawful  or  prejudicial  to  the  community”  they  are  indictable 
at  the  common  law,  for  a  conspiracy.1 

This  extreme  view  reached  its  fullest  expression  in  the 
New  York  Hatters’  Case  in  1823. 

Journeymen  confederating  and  refusing  to  work,  unless  for 
certain  wages,  may  be  indicted  for  a  conspiracy,  .  .  .  for  this 
offense  consists  in  the  conspiracy  and  not  in  the  refusal ;  and  all 
conspiracies  are  illegal  though  the  subject  matter,  of  them  may 
be  lawful.  .  .  .  The  object  of  a  conspiracy  .  .  .  may  be  (1) 
to  injure  public  trade,  (2)  to  affect  the  public  health,  (3)  to 
violate  public  police,  (4)  to  insult  public  justice.  Journey¬ 
men  may  each  singly  refuse  to  work,  unless  they  receive  an 
advance  in  wages,  but  if  they  refuse,  by  preconcert  or  asso¬ 
ciation,  they  may  be  indicted  and  convicted  of  conspiracy. 
.  .  .  The  gist  of  a  conspiracy  is  the  unlawful  confederacy,  and 
the  offence  is  complete  when  the  confederacy  is  made,  and  any 
act  done  in  pursuit  of  it  is  no  constituent  part  of  the  offence. 

A  milder  view  of  the  law  is  found  in  the  opinion  in  the 
Master  Ladies’  Shoemakers’  case  of  Pennsylvania,  1821, 
written  by  a  judge  of  the  supreme  court  of  that  state.  He 
called  in  question  the  authorities  that  had  in  former  cases 
been  accepted.  In  these  no  general  principle  had  been 
distinctly  asserted.  To  follow  English  precedent  seemed 
unsound  policy  for  the  reason  that  in  England  workmen 
had  been  put 


1  Doc.  Hist.,  vol.  iv,  pp.  81,  86. 


EARLY  CASES — 1800-1850 


41 


under  restrictions  so  severe,  by  statutes  that  were  never  ex¬ 
tended  to  this  country  that  we  ought  to  pause  before  we  adopt 
their  law  of  conspiracy,  as  respects  artisans,  which  may  be 
said  to  have,  in  some  measure  indirectly  received  its  form 
from  the  pressure  of  positive  enactment,  and  which  there¬ 
fore  may  be  entirely  unfitted  to  the  condition  and  habits  of 
the  same  class  here.  .  .  . 

The  unsettled  state  of  the  law  of  conspiracy  has  arisen  .  .  . 
from  a  gradual  extension  of  the  limits  of  the  offence ;  each 
case  having  been  decided  on  its  own  particular  circumstances, 
without  reference  to  any  pre-established  principle.  When  a 
combination  had  for  its  direct  object  to  do  a  criminal  act;  as 
to  procure  the  conviction  of  an  innocent  man  (the  only  case 
Originally  indictable,  and  which  afterwards  served  as  a  nucleus 
for  the  formation  of  the  entire  law  of  the  subject)  the  mind  at 
once  pronounced  it  criminal.  So  where  the  act  was  lawful, 
but  the  intention  was  to  accomplish  it  by  unlawful  means ; 
as  where  the  conviction  of  a  person  known  to  the  conspirators 
to  be  guilty,  was  to  be  procured  by  any  abuse  of  his  right  to 
a  fair  trial  in  the  ordinary  course.  But  when  the  crime  be¬ 
came  so  far  enlarged  as  to  include  cases  where  the  act  was 
not  only  lawful  in  the  abstract,  but  also  to  be  accomplished  ex¬ 
clusively  by  the  use  of  lawful  means,  it  is  obvious  that  distinc¬ 
tions  as  complicated  and  various  as  the  relations  and  trans¬ 
actions  of  civil  society,  became  instantly  involved,  and  to  deter¬ 
mine  on  the  guilt  or  innocence  of  each  of  this  class  of  cases, 
an  examination  of  the  nature  and  principles  of  the  offence  be¬ 
came  necessary.  This  examination  has  not  yet  been  very  ac¬ 
curately  made ;  for  there  is  in  the  books  an  unusual  want  of 
precision  in  the  terms  used  to  describe  the  distinctive  features 
of  guilt  or  innocence.  It  is  said  the  union  of  persons  in  one 
common  design  is  the  gist  of  the  offence :  but  that  holds  only 
in  regard  to  a  supposed  question  of  the  necessity  of  actual 
consummation  of  the  meditated  act;  for  if  combination  were, 
in  every  view,  the  essence  of  the  crime,  it  would  necessarily 
impart  criminality  to  the  most  laudable  associations.  It  is 
said  in  Leach’s  note  to  Hawkins  that  the  conspiracy  is  the 


42 


AMERICAN  COURTS  IN  LABOR  CASES 


gist  of  the  charge,  and  that  to  do  a  thing  lawful  in  itself  by 
conspiracy,  is  unlawful ;  but  that  is  begging  the  very  question, 
whether  a  conspiracy  exists,  and  leaves  the  inquiry  of  what 
shall  be  said  to  be  doing  a  lawful  act  by  conspiracy,  as  much 
in  the  dark  as  ever.  Mr.  Chitty,  in  his  Criminal  Law,  the 
best  compilation  on  the  subject  extant,  very  truly  says,  there 
are  many  cases  in  which  an  act  would  not  be  cognizable  by 
law,  if  done  by  an  individual,  that  would,  nevertheless,  be  the 
subject  of  an  indictment  if  effected  by  several  with  a  joint 
design :  yet  he,  too,  says  the  offence  depends  on  the  unlaw¬ 
ful  agreement,  and  not  on  the  act  which  is  to  follow  it :  the  act 
when  done  being  but  evidence  of  the  agreement.  From  this 
it  might  be  inferred  that  an  act  can  operate  only  to  show  that 
an  agreement  of  some  sort  has  taken  place,  but  not  by  its  na¬ 
ture  or  object  to  stamp  the  character  of  guilt  on  it;  but  Chitty 
himself  admits  that  it  is  impossible  to  conceive  a  combination, 
merely  as  such,  to  be  illegal.  It  will  therefore  be  perceived 
that  the  motive  for  combining,  or,  what  is  the  same  thing,  the 
nature  of  the  object  to  be  attained  as  a  consequence  of  the 
lawful  act  is,  in  this  class  of  cases,  the  discriminative  circum¬ 
stance.  Where  the  act  is  lawful  for  an  individual,  it  can  be 
the  subject  of  a  conspiracy,  when  done  in  concert,  only  where 
there  is  a  direct  intention  that  injury  shall  result  from  it,  or 
where  the  object  is  to  benefit  the  conspirators  to  the  prejudice 
of  the  public  or  the  oppression  of  individuals,  and  where  such 
prejudice  or  oppression  is  the  natural  and  necessary  con¬ 
sequence.  .  .  . 

I  take  it,  then,  a  combination  is  criminal  wherever  the  act 
to  be  done  has  a  necessary  tendency  to  prejudice  the  public  or 
to  oppress  individuals  by  unjustly  subjecting  them  to  the 
power  of  the  confederates,  and  giving  effect  to  the  purposes  of 
the  latter,  whether  of  extortion  or  mischief.  According  to 
this  view  of  the  law,  a  combination  of  employers  to  depress 
the  wages  of  journeymen  below  what  they  would  be,  if  there 
was  no  recurrence  to  artificial  means  by  either  side,  is  criminal. 
(Commonwealth  v.  Carlisle.! 


EARLY  CASES — 1800-1850 


4d 


Rivalry  between  individuals  cannot  perceptibly  disturb 
the  equilibrium  of  society.  They  will  fall  within  the  limits 
of  fair  competition.  But  combination  increases  power. 
That  power  may  become  mischievous  to  the  public  at  large. 
“  It  is  the  employment  of  an  engine  so  powerful  and  dan¬ 
gerous  that  gives  criminality  to  an  act  that  would  be  per¬ 
fectly  innocent,  at  least  in  a  legal  view,  when  done  by  an 
individual.”  (Commonwealth  v.  Carlisle.) 

Again  a  more  liberal  view  of  conspiracy  is  found,  this 
time  expressed  by  the  supreme  judicial  court  of  Massa¬ 
chusetts.  (Commonwealth  v.  Hunt,  1842.)  Two  years 
previous,  the  case  had  been  tried  by  the  lower  court 
in  the  city  of  Boston.  There  the  more  extreme  view 
had  been  adopted  and  the  defendants  had  been  found 
guilty.  On  appeal  the  decision  was  reversed  by  the 
supreme  court.  None  of  the  earlier  trials  of  which  records 
have  been  found  had  been  held  in  the  Massachusetts  courts. 
They  were  therefore  free  from  any  legal  obligation  to  ac¬ 
cept  the  opinions  expressed  in  previous  cases.  The  general 
rules  of  the  common  law,  says  the  opinion,  are  in  force  in 
this  state.  At  the  same  time  it  is  true  that  although  the 
same  rule  of  law  may  be  in  force  in  England  and  in  Massa¬ 
chusetts,  “  it  must  depend  upon  the  local  laws  of  each 
country  to  determine,  whether  the  purpose  to  be  accom¬ 
plished  by  the  combination,  or  the  concerted  means  of  ac¬ 
complishing  it,  be  unlawful  or  criminal  in  the  respective 
countries.”  The  laws  of  England  regulating  wages  and 
other  matters  pertaining  to  laborers, 

not  being  adapted  to  the  circumstances  of  our  colonial  con¬ 
dition,  were  not  adopted,  used  or  approved,  and  therefore  do 
not  come  within  the  description  of  the  laws  adopted  and 
confirmed  by  the  provision  of  the  constitution  already  cited. 
This  consideration  will  do  something  towards  reconciling  the 
English  and  American  cases,  and  may  indicate  how  far  the 


44 


AMERICAN  COURTS  IN  LABOR  CASES 


principles  of  the  English  cases  will  apply  in  this  Common¬ 
wealth,  and  show  why  a  conviction  in  England,  in  many  cases, 
would  not  be  a  precedent  for  a  like  conviction  here. 

While  “  as  a  general  description  ”  a  combination  to  do  an 
unlawful  act  is  punishable  as  conspiracy,  it  is  clear  that 
not  every  such  combination  is  punishable  as  such.  The 
justice  quotes  with  approval  Chitty’s  statement  that  “  we 
can  rest,  therefore,  only  on  the  individual  cases  decided, 
which  depend,  in  general  on  particular  circumstances,  and 
which  are  not  to  be  extended.”  A  review  of  American  cases 
next  follows  and  brings  the  court  to  the  conclusion  that 
they  “  are  not  much  more  satisfactory.”  So  far  as  general 
conclusions  are  concerned  the  opinion  accepts,  of  course, 
the  same  fundamental  rules  of  law  that  were  laid  down  in 
all  former  opinions. 

A  reader  of  the  opinions  delivered  by  the  various  judges 
during  the  entire  period  prior  to  1842  looking  for  economic 
reasoning,  will  find  very  little  to  reward  his  search.  The 
situation  was  regarded  as  purely  a  legal  one.  Such  ad¬ 
vantage  as  the  workmen  were  able  to  secure  was  only  in 
the  limitation  of  the  applicability  of  the  English  law,  and 
the  not  very  positive  uncertainty  of  the  validity  of  the  Eng¬ 
lish  authorities  cited.  The  question  of  the  effect  of  strikes 
on  trade  was  raised  in  several  of  the  trials.  In  the  Phila¬ 
delphia  Cordwainers’  case,  1806,  the  Recorder  raised  the 
question  whether  the  advance  in  wages  would  not  force 
up  prices  and  thus  injure  the  business  of  the  city  and  limit 
exports.  The  idea  of  a  natural  price  as  against  an  artificial 
price  is  also  explained,  and  it  is  pointed  out  that  a  natural 
price  of  wages  cannot  prevail  where  they  are  thus  fixed  by 
the  will  of  the  few  who  are  interested.1  In  the  Pittsburgh 
Cordwainers’  case,  1815,  the  judge  referred  to  the  restraint 

1  Doc.  Hist.,  vol.  iii,  pp.  102,  228,  229. 


EARLY  CASES — 1800-1850 


45 


on  trade  that  resulted  from  such  an  organization.  As  Pitts¬ 
burgh  is  “  a  trading  and  manufacturing  town  ”  it  is  espec¬ 
ially  important  that  the  freedom  of  all  artisans  should  be 
protected.1  Such  references  as  these  are  rather  incidental 
to  the  case  and  one  feels  from  reading  the  entire  account 
that  they  did  not  have  very  great  weight  in  determining  the 
outcome. 

The  first  extensive  reference  to  this  phase  of  the  ques¬ 
tion  was  in  the  case  of  the  shoemakers  of  Geneva, 
brought  under  the  statute  of  the  state  of  New  York. 
(People  v.  Fisher,  1835.)  The  revision  of  1828  had 
included  the  law  of  conspiracy.  According  to  the 
statute  “  two  or  more  persons  conspiring  to  commit  any 
act  injurious  to  trade  or  commerce  shall  be  deemed  guilty 
of  a  misdemeanor.”  In  the  second  part  of  this  opinion  the 
real  legal  question  is  raised :  “  is  a  conspiracy  to  raise  the 
wages  of  journeymen  shoemakers  an  act  injurious  to  trade 
or  commerce?  ”  By  a  course  of  reasoning  somewhat  fully 
elaborated  the  question  is  answered  in  the  affirmative. 

The  raising  of  wages,  runs  the  argument,  is  a  matter  in 
which  the  public  have  a  deep  interest.  The  products  of 
labor  compose  a  large  proportion  of  the  materials  with 
which  trade  is  carried  on.  Boots  and  shoes  are  articles  of 
trade  and  commerce. 

If  journeymen  bootmakers,  by  extravagant  demands  for 
wages,  so  enhance  the  price  of  boots  made  in  Geneva,  for 
instance,  that  boots  made  elsewhere,  in  Auburn  for  example, 
can  be  sold  cheaper,  is  not  such  an  act  injurious  to  trade?  It 
is  surely  so  to  the  trade  of  Geneva  in  that  particular  article, 
and  that  I  apprehend  is  all  that  is  necessary  to  bring  the  of¬ 
fence  within  the  statute. 

All  combinations  to  affect  wages,  continues  the  argument, 

1  Doc.  Hist.,  vol.  iv,  p.  81. 


AMERICAN  COURTS  IN  LABOR  CASES 


46 

are  injurious  to  the  public  at  large,  in  that  they  dictate  what 
others  shall  or  shall  not  work  for.  If  combinations  of  this 
kind  are  lawful  in  Geneva  they  are  so  elsewhere.  If  boot¬ 
makers  can  fix  the  wage  at  one  dollar  a  pair  they  can  fix 
it  at  fifty  dollars.  Bakers  would  do  the  same,  also  tailors 
and  others. 

Such  combinations  would  be  productive  of  derangement 
and  confusion,  which  certainly  must  be  considered  “  injurious 
to  trade.”  ...  It  is  true,  that  no  great  danger  is  to  be  ap¬ 
prehended  on  account  of  the  impracticability  of  such  universal 
combinations.  But  if  universally  or  even  generally  entered 
into,  they  would  be  prejudicial  to  trade  and  to  the  public; 
they  are  wrong  in  each  particular  case. 

In  the  arguments  before  the  court  in  the  case  of  the  Hud¬ 
son  shoemakers,  1836,  the  discussion  above  cited  was  re¬ 
ferred  to  by  counsel  for  the  defendants,  and  a  rather  ex¬ 
tended  refutation  of  its  soundness  presented.  This  is  so 
modern  in  its  thought  that  it  should  be  reproduced  at 
length. 

Look  at  the  consequences  of  your  decision!  If  against  the 
accused,  you  place  them  at  the  mercy  of  their  employers — you 
forbid  to  them  that  union  which  alone  can  enable  them  to  re¬ 
sist  the  oppressions  of  avarice — you  condemn  them  to  constant 
labor  for  such  a  pittance  as  others  may  choose — you  refine 
upon  even  ancient  cruelty.  The  time  was  when  the  rate  of 
wages  was  fixed  by  the  legislature  or  the  local  magistrates, 
but  you  will  commit  it  to  those  whose  interest  it  is  to  reduce 
it.  .  .  .  If,  however,  your  decision  should  be  in  favor  of  the 
accused,  you  will  repudiate  this  common  law  doctrine  which 
has  been  so  unnecessarily  pressed  into  the  cause  of  the  prose¬ 
cution.  In  this  you  will  but  imitate  the  conduct  of  the  legis¬ 
lature.  You  will  leave  trade  to  regulate  itself  by  the  mutual 
freedom  from  partial  restraints  of  both  the  employer  and  his 
workmen.  You  will  leave  to  one  side  the  same  union  which 


EARLY  CASES — 1800-1850 


47 


practically  exists  upon  the  other,  and  you  will  restrain  both  no 
farther  than  public,  not  private,  considerations  will  justify.  .  . 

To  justify  a  conviction  the  injury  must  be  to  the  trade  of 
the  whole  community.  Although  Mosier  and  Sattock  may 
have  sold  less,  yet  other  masters  sold  more.  The  same  num¬ 
ber  were  made  and  consumed.  The  defendants  did  not  cease 
to  work  at  all,  though  they  left  the  employ  of  particular  mas¬ 
ters.  If  they  had  abandoned  all  work  because  they  could  not 
get  their  prices,  then  there  would  have  been  a  subtraction  of 
so  much  from  the  productive  labor  of  the  country.  Still  the 
question  would  remain,  upon  whom  should  the  blame  rest — 
upon  him  who  refused  to  pay,  or  him  who  refused  to  work 
until  he  was  paid?  I  cannot  comprehend  how  an  injury  to 
the  trade  of  one  part  and  a  corresponding  benefit  to  another 
part,  can  operate  to  the  injury  of  the  whole.  I  can  see  the 
injury  and  its  corresponding  advantage,  but  I  can  see  no  sub¬ 
traction  from  the  sum  total.  .  . 

Nor  can  I  see  the  great  danger  which  some  anticipate  from 
these  combinations — if  the  mechanic  gets  greater  pay,  I  can  see 
how  we,  who  are  not  mechanics,  have  more  to  pay.  We  may 
become  poorer,  but  he  will  be  just  so  much  the  richer.  Yet 
I  can  see  no  diminution  from  the  aggregate  wealth  of  the 
community.  It  appears  to  me  that  the  thing,  if  left  alone,  will 
regulate  itself.  If  the  journeymen  tailors,  by  means  of  their 
combinations  get  the  prices  of  their  work  so  high  that  we  can¬ 
not  afford  to  pay  them,  we  shall  not  go  without  clothes,  we 
shall  make  them  ourselves  as  you  do  now  and  for  the  same 
reason,  because  it  is  our  interest  to  do  so.  Nor  will  our 
whole  city  be  without  bread,  because  the  journeymen  bakers 
are  extravagant  in  their  demands.  We  will  make  it  ourselves, 
as  many  of  us  do  now.  If  they  persist  in  their  extravagance, 
they  must  either  starve  from  their  obstinacy,  adopt  some  other 
calling  or  retrace  their  steps  until  they  find  the  proper  level 
with  other  things  in  the  community.  If  the  farmer  raises  the 
price  of  provisions,  the  mechanic  will  raise  the  price  of  his 
fabrics  and  thus  the  whole  matter  will  regulate  itself.  The 
mischief  is,  when  everything  else  is  enhanced  in  value,  that 


AMERICAN  COURTS  IN  LABOR  CASES 


48 

you  will  attempt  to  keep  any  one  class  down  to  old  values  and 
thus  exclude  them  from  a  just  participation  in  the  general 
prosperity.  This  you  cannot  do  by  positive  enactments  or 
judicial  decisions  without  causing  heart  burnings  and  discon¬ 
tent.  In  our  country  the  protection  against  such  a  partial 
operation  of  the  laws  is  to  be  found  in  our  courts  of  justice 
and  though  the  remedy  may  be  delayed  for  a  while,  the  good 
sense  and  true  patriotism  which  pervade  our  whole  commun¬ 
ity  render  it  ultimately  certain.1 

The  main  reliance  of  the  prosecutors  in  all  these  cases 
was  their  ability  to  bring  the  acts  within  the  law  of  conspir¬ 
acy.  This  they  succeeded  in  doing.  In  some  of  the  cases 
the  defendants  were  freed,  but  not  so  much  because  of  dif¬ 
ferences  of  opinion  as  to  what  constituted  a  conspiracy  as 
because  of  some  mitigating  circumstance  which  in  the  minds 
of  the  jurors  made  the  law  inapplicable  to  the  case.  There 
can  be  no  question,  then,  that  the  activities  of  the  laborers 
when  carried  on  through  their  organized  societies  were  very 
greatly  limited.  One  man  might,  of  course,  stop  work. 
But  when  several  stopped  at  the  same  time  and  for  the 
same  cause  that  was  almost  prima  facie  evidence  of  con¬ 
spiracy. 

Feeling  on  both  sides  was  intense.  Each  side  saw  in  the 
success  of  the  other  the  defeat  of  those  principles  of  liberty 
and  eternal  justice  for  which  the  nation  had  been  estab¬ 
lished.  The  most  impassioned  appeals  were  made  to  the 
jurors  and  every  opportunity  seized  for  impressing  them 
with  the  extreme  gravity  of  the  situation.  It  will  not  be 
possible  to  reproduce  these  flights.  Indeed  the  reporters 
themselves  confess  their  inability  to  catch  more  than  the 
substance  of  the  rhetoric  that  was  used  in  the  “  higher  and 
sublime  flights  of  the  imagination,  or  in  their  impassioned 


1  Doc.  Hist.,  vol.  iv,  pp.  303-307- 


EARLY  CASES — 1800-1850 


49 


and  enthusiastic  addresses  to  the  feelings.”  Two  brief 
extracts  will  indicate  something  of  the  depth  of  the  feel¬ 
ing.  In  the  preface  to  the  report  of  the  Pittsburgh  Cord- 
wainers’  case,  tried  in  1815,  is  found  the  following  com¬ 
ment  made  by  the  reporter. 

The  verdict  of  that  jury  is  most  important  to  the  manufac¬ 
turing  interests  of  the  community;  it  puts  an  end  to  those 
associations  which  have  been  so  prejudicial  to  the  successful 
enterprise  of  the  capitalists  of  the  western  county.  But  this 
case  is  not  important  to  this  country  alone ;  it  proves  beyond 
the  possibility  of  doubt,  that  notwithstanding  the  adjudica¬ 
tions  in  New  York  and  Philadelphia,  there  still  exists  in  those 
cities  combinations  which  extend  their  deleterious  influence  to 
every  part  of  the  union.  The  inhabitants  of  those  cities,  the 
manufacturers  particularly,  are  bound  by  their  interests,  as 
well  as  the  duties  they  owe  the  community,  to  watch  those 
combinations  with  a  jealous  eye,  and  to  prosecute  to  convic¬ 
tion,  and  subject  to  the  penalties  of  the  law,  conspiracies  so 
subversive  to  the  best  interests  of  their  country.1 

On  the  other  hand,  the  title-page  of  the  report  of  the 
Hudson  Shoemakers’  case  contains  the  following: 

Trial  of  .  .  .  Journeymen  Shoemakers  of  the  City  of 

Hudson  for  an  alleged  combination  and  conspiracy  .  .  . 
where  twelve  patriotic  jurymen  set  aside  by  their  verdict  the 
decision  of  Chief  Justice  Savage,  thus  rescuing  the  rights  of 
mechanics  from  the  grasp  of  tyranny  and  oppression.2 

The  period  that  is  under  review  came  to  a  close  with  the 
law  of  conspiracy  still  applicable  to  strikes  and  still  highly 
detrimental  to  the  interests  of  organized  workmen.  The 
courts  did  not  succeed  in  reaching  a  practical  solution  of 
the  questions  involved.  So  fully  under  the  influence  of  the 
rules  of  law  were  they  that  they  failed  to  discern  a  new 


1  Doc.  Hist.,  vol.  ?v,  pp.  16,  1 7. 


2  Ibid.,  p.  277. 


5° 


»  AMERICAN  COURTS  IN  LABOR  CASES 


movement.  The  spirit  of  medievalism  with  its  antagonism 
to  the  working  classes  and  its  ingrained  feeling  that  in 
some  way  the  laborer  must  be  controlled  by  his  employers, 
somewhat  after  the  manner  of  a  serf  by  his  lord  or  an  ap¬ 
prentice  by  his  master,  survived.  The  ideas  of  personal 
liberty,  of  independence  in  industry,  of  laissez  faire  were  new. 
They  had  been  developed  by  the  industrial  leaders.  These 
ideas  those  leaders  could  express  and  enforce  in  matters 
pertaining  to  themselves.  They  did  not  see  that  logic  and 
fairness  required  their  application  to  journeymen  as  well  as 
to  masters.  So  far  as  the  new  nation  had  adopted  them, 
they  were  essentially  political,  not  industrial.  The  period 
does  not  reveal  to  us  much  progress  toward  the  realization 
of  the  idea  that  in  every  expression  where  the  word  politi¬ 
cal  was  used  the  word  industrial  must  be  inserted  also,  that 
political  freedom  before  it  could  be  freedom  in  any  real 
sense  must  be  industrial  freedom  as  well. 

The  final  conclusion  to  be  drawn  from  these  cases  has 
been  left  for  the  end  of  the  chapter,  since  it  marks  in  one 
respect  a  transition  to  more  modern  conceptions.  The  as¬ 
sumption  had  usually  been  that  evil  purposes  were  behind 
all  workingmen’s  associations.  That  they  could  exist  for 
any  laudable  purpose  seemed  inconceivable  to  the  courts. 

It  is  in  Commonwealth  v.  Hunt,  1842,  that  is  to  be  found 
the  first  judicial  appreciation  of  the  possible  good  in  labor 
organizations,  the  first  suggestion  that  even  a  violation  of 
law  by  their  members  should  not  be  made  an  occasion  for 
denouncing  the  association  as  such.  This  portion  of  the 
opinion  is  so  important  that  it  is  quoted  at  length. 

The  manifest  intent  of  the  association  is,  to  induce  all  those 
engaged  in  the  same  occupation  to  become  members  of  it. 
Such  a  purpose  is  not  unlawful.  It  would  give  them  a  power 
which  might  be  exerted  for  useful  and  honorable  purposes, 
or  for  dangerous  and  pernicious  ones.  If  the  latter  were  the 


EARLY  CASES — 1800-1850 


51 


real  and  actual  object,  and  susceptible  of  proof,  it  should 
have  been  specially  charged.  Such  an  association  might  be 
used  to  afford  each  other  assistance  in  times  of  poverty,  sick¬ 
ness  and  distress;  or  to  raise  their  intellectual,  moral  and 
social  condition ;  or  to  make  improvement  in  their  art ;  or  for 
other  proper  purposes.  Or  the  association  might  be  designed 
for  purposes  of  oppression  and  injustice.  But  in  order  to 
charge  all  those,  who  become  members  of  an  association,  with 
the  guilt  of  a  criminal  conspiracy,  it  must  be  averred  and 
proved  that  the  actual,  if  not  the  avowed  object  of  the  asso¬ 
ciation,  was  criminal.  An  association  may  be  formed,  the 
declared  objects  of  which  are  innocent  and  laudable,  and  yet 
they  may  have  secret  articles,  or  an  agreement  communicated 
only  to  the  members,  by  which  they  are  banded  together  for 
purposes  injurious  to  the  peace  of  society  or  the  rights  of  its 
members.  Such  would  undoubtedly  be  a  criminal  conspiracy, 
on  proof  of  the  fact,  however  meritorious  and  praiseworthy 
the  declared  objects  might  be.  The  law  is  not  to  be  hood¬ 
winked  by  colorable  pretences.  It  looks  at  truth  and  reality, 
through  whatever  disguise  it  may  assume.  But  to  make  such 
an  association,  ostensibly  innocent,  the  subject  of  prosecution 
as  a  criminal  conspiracy,  the  secret  agreement,  which  makes 
it  so,  is  to  be  averred  and  proved  as  the  gist  of  the  offence. 
But  when  an  association  is  formed  for  purposes  actually  in¬ 
nocent,  and  afterwards  its  powers  are  abused,  by  those  who 
have  the  control  and  management  of  it,  to  purposes  of  op¬ 
pression  and  injustice,  it  will  be  criminal  in  those  who  thus 
misuse  it,  or  give  consent  thereto,  but  not  in  the  other  members 
of  the  association.  In  this  case,  no  such  secret  agreement, 
varying  the  objects  of  the  association  from  those  avowed,  is 
set  forth  in  this  count  of  the  indictment. 

Nor  can  we  perceive  that  the  objects  of  this  association, 
whatever  they  may  have  been,  were  to  be  attained  by  criminal 
means.  The  means  which  they  proposed  to  employ,  as  averred 
in  this  count,  and  which,  as  we  are  now  to  presume,  were  es¬ 
tablished  by  the  proof,  were,  that  they  would  not  work  for  a 
person,  who,  after  due  notice,  should  employ  a  journeyman 


52 


AMERICAN  COURTS  IN  LABOR  CASES 


not  a  member  of  their  society.  Supposing  the  object  of  the 
association  to  be  laudable  and  lawful,  or  at  least  not  unlaw¬ 
ful,  are  these  means  criminal?  The  case  supposes  that  these 
persons  are  not  bound  by  contract,  but  free  to  work  for  whom 
they  please,  or  not  to  work,  if  they  so  prefer.  In  this  state  of 
things,  we  cannot  perceive,  that  it  is  criminal  for  men  to 
agree  together  to  exercise  their  own  acknowledged  rights,  in 
such  a  manner  as  best  to  subserve  their  own  interests.  One 
way  to  test  this  is,  to  consider  the  effect  of  such  an  agree¬ 
ment,  where  the  object  of  the  association  is  acknowledged  on 
all  hands  to  be  a  laudable  one.  Suppose  a  class  of  workmen, 
impressed  with  the  manifold  evils  of  intemperance,  should 
agree  with  each  other  not  to  work  in  a  shop  in  which  ardent 
spirit  was  furnished,  or  not  to  work  in  a  shop  with  any  one 
who  used  it,  or  not  to  work  for  an  employer,  who  should, 
after  notice,  employ  a  journeyman  who  habitually  used  it. 
The  consequences  might  be  the  same.  A  workman,  who  should 
still  persist  in  the  use  of  ardent  spirit,  would  find  it  more 
difficult  to  get  employment ;  a  master  employing  such  an  one 
might,  at  times,  experience  inconvenience  in  his  work,  in  los¬ 
ing  the  services  of  a  skillful  but  intemperate  workman.  Still 
it  seems  to  us,  that  as  the  object  would  be  lawful,  and  the 
means  not  unlawful,  such  an  agreement  could  not  be  pro¬ 
nounced  a  criminal  conspiracy.  ...  It  is  perfectly  consistent 
with  every  thing  stated  in  this  count,  that  the  effect  of  the 
agreement  was,  that  when  they  were  free  to  act,  they  would 
not  engage  with  an  employer,  or  continue  in  his  employment, 
if  such  employer,  when  free  to  act,  should  engage  with  a  work¬ 
man,  or  continue  a  workman  in  his  employment,  not  a  member 
of  the  association.  .  .  . 

It  acknowledges  the  established  principle,  that  every  free 
man,  whether  skilled  laborer,  mechanic,  farmer  or  domestic 
servant,  may  work  or  not  work,  or  work  or  refuse  to  work 
with  any  company  or  individual,  at  his  own  option,  except  so 
far  as  he  is  bound  by  contract.  But  whatever  might  be  the 
force  of  the  word  “  compel,’’  unexplained  by  its  connexion, 
it  is  disarmed  and  rendered  harmless  by  the  precise  statement 


EARLY  CASES — 1800-1850 


53 


of  the  means,  by  which  such  compulsion  was  to  be  effected. 
It  was  the  agreement  not  to  work  for  him,  by  which  they  com¬ 
pelled  Wait  to  decline  employing  Horne  longer.  On  both 
of  these  grounds,  we  are  of  opinion  that  the  statement  made 
in  this  second  count,  that  the  unlawful  agreement  was  carried 
into  execution,  makes  no  essential  difference  between  this  and 

the  first  count. 

% 

The  court  does  not  overlook  the  concern  of  the  workman 
who  was  discharged  because  the  members  of  the  organiza¬ 
tion  refused  to  work  with  him.  This  was  however  a  result 
of  legitimate  competition. 

We  think,  therefore,  that  associations  may  be  entered  into, 
the  object  of  which  is  to  adopt  measures  that  may  have  a 
tendency  to  impoverish  another,  that  is,  to  diminish  his  gains 
and  profits,  and  yet  so  far  from  being  criminal  or  unlawful, 
the  object  may  be  highly  meritorious  and  public  spirited.  The 
legality  of  such  an  association  will  therefore  depend  upon 
the  means  to  be  used  for  its  accomplishment.  If  it  is  to  be 
carried  into  effect  by  fair  or  honorable  and  lawful  means,  it  is, 
to  say  the  least,  innocent;  if  by  falsehood  or  force,  it  may  be 
stamped  with  the  character  of  conspiracy.  It  follows  as  a 
necessary  consequence,  that  if  criminal  and  indictable,  it  is  so 
by  reason  of  the  criminal  means  intended  to  be  employed 
for  its  accomplishment,  and  as  a  further  legal  consequence,  that 
as  the  criminality  will  depend  on  the  means,  those  means  must 
be  stated  in  the  indictment. 


. 


. 


PART  II 

UNION  ACTIVITIES 


I 


CHAPTER  IV 


The  Strike 

First  among  the  methods  of  unions  is  the  strike.  It  is 
the  method  that  has  been  championed  by  labor  leaders  and 
put  into  practice  by  unions  until  it  is  one  of  the  most  famil¬ 
iar  of  unionist  activities. 

But  few  opinions  can  be  read,  however,  before  it  becomes 
evident  that  in  strikes  two  separate  considerations  are  in¬ 
volved.  These  are :  ( i )  the  strike  as  the  mere  act  of  stop¬ 
ping  work,  and  (2)  the  strike  as  a  means  of  forcing  an  em¬ 
ployer  to  yield,  often  accompanied  by  riotous  proceedings 
through  which  property  and  even  life  are  endangered. 
Some  opinions  make  it  clear  that  this  distinction  has  been 
kept  clearly  in  mind  while  others  show  quite  as  clearly  that 
the  stopping  of  work  and  the  destruction  of  property  were 
not  distinguished  either  in  the  decision  or  in  the  opinion 
justifying  it.  It  is  in  connection  with  some  of  the  most  riot¬ 
ous  strikes  that  the  distinction  has  received  no  attention 
and  doubtless  there  was  much  in  the  evidence  presented  to 
show  that  it  was  of  no  practical  importance  in  the  case. 

A  discussion  of  the  definition  of  the  term  was  entered 
upon  most  fully  by  Circuit  Judge  Jenkins  in  Farmers’  Loan 
and  Trust  Co.  v.  Northern  Pacific  Railroad  Co,  and  by 
Circuit  Justice  Harlan  in  Arthur  v.  Oakes.  These  cases 
arose  out  of  the  railroad  strikes  of  1894  and  the  violence 
attending  them  doubtless  influenced  the  views  expressed 
in  the  opinions.  The  answer  to  the  question  before  the 
court,  said  Judge  Jenkins,  “  must  largely  depend  upon  the 

57 


AMERICAN  COURTS  IN  LABOR  CASES 


58 

proper  definition  of  the  term.”  Definitions  are  then  quoted 
from  a  number  of  authorities. 

This  part  of  the  motion  presents  the  issue  whether  a  strike 
is  lawful.  The  answer  must  largely  depend  upon  the  proper 
definition  of  the  term.  It  has  been  variously  defined.  By 
Worcester,  “  To  cease  from  work  in  order  to  extort  higher 
wages  as  workmen;”  by  Webster,  “To  quit  work  in  a  body, 
or  by  combination  in  order  to  compel  their  employers  to  raise 
their  wages ;  ”  the  Encyclopedia  Dictionary,  “  The  act  of 
workmen  in  any  trade  or  branch  of  industry  when  they  leave 
their  work  with  the  object  of  compelling  the  master  to  con¬ 
cede  certain  demands  made  by  them, — as  an  advance  of  wages, 
the  withdrawal  of  a  notice  of  reduction  of  wages,  a  shorten¬ 
ing  of  the  hours  of  work,  the  withdrawal  of  any  obnoxious 
rule  or  regulation,  or  the  like ;”  the  Imperial  Dictionary,  “  To 
quit  work  in  order  to  compel  an  increase  or  prevent  a  re¬ 
duction  of  wages ;”  the  Century  Dictionary,  “  To  press  a  claim 
or  demand  by  coercive  or  threatening  action  of  some  kind ;  in 
common  usage,  to  quit  work  along  with  others,  in  order  to  com¬ 
pel  an  employer  to  accede  to  some  demand,  as  for  increase  of 
pay,  or  to  protest  against  something,  as  a  reduction  of  wages ; 
as  to  strike  for  higher  pay,  or  shorter  hours  of  work.” 
Bouvier  defines  it :  “A  combined  effort  of  workmen  to  obtain 
higher  wages  or  other  concessions  from  their  employers  by 
stopping  work  at  a  preconcerted  time.”  The  definition  sanc¬ 
tioned  by  the  court  of  appeals  of  New  York  in  Railway  Co. 
v.  Bowns,  and  embodied  by  Mr.  Anderson  in  his  Law  Dic¬ 
tionary,  is :  “A  combination  among  laborers,  or  those  employed 
by  others,  to  compel  an  increase  of  wages,  change  in  the  hours 
of  labor,  a  change  in  the  manner  of  conducting  the  business  of 
the  principal,  or  to  enforce  some  particular  policy  in  the  char¬ 
acter  or  the  number  of  men  employed,  or  the  like.”  Mr.  Black, 
in  his  Law  Dictionary,  defines  it  to  be :  “  The  act  of  a  party 
of  workmen  employed  by  the  same  master,  in  stopping  work 
all  together  at  a  preconcerted  time,  and  refusing  to  continue, 
until  higher  wages  or  shorter  time  or  some  other  concession 


THE  STRIKE 


59 


is  granted  to  them  by  the  employer.’’  Whichever  definition 
may  be  preferred, — and  possibly  no  one  of  them  is  precisely 
accurate, — there  are  running  through  all  of  them  two  con¬ 
trolling  ideas  :  First,  by  compulsion  to  extort  from  the  employer 
the  concession  demanded ;  second,  a  cessation  of  labor,  but  not 
the  abandonment  of  employment.  The  stoppage  of  work  is 
designed  to  be  temporary,  continuing  only  until  the  accom¬ 
plishment  of  the  design,  and  upon  its  accomplishment  the  re¬ 
sumption  of  employment.  The  cessation  of  labor  is  not  a  bona 
fide  dissolution  of  contractual  relations  and  an  abandonment 
of  the  employment,  but  is  designed  as  a  means  of  coercion  to 
accomplish  the  desired  result.  The  cessation  of  labor  is  pre¬ 
arranged  by  the  body  of  men  through  their  organizations,  and 
is  to  take  effect  simultaneously  at  a  stated  time,  for  the  pur¬ 
pose  of  preventing  the  master  from  continuing  his  business, 
and  to  compel  him  to  submit  to  the  dictation  of  his  servants. 
The  definition  of  the  term  proffered  to  the  court  at  the  argu¬ 
ment,  recognized  by  the  labor  organizations  of  the  country, 
was  this :  “A  strike  is  a  concerted  cessation  of  or  refusal  to 
work  until  or  unless  certain  conditions  which  obtain  or  are 
incident  to  the  terms  of  the  employment  are  changed.  The 
employee  declines  to  longer  work,  knowing  full  well  that  the 
employer  may  immediately  employ  another  to  fill  his  place; 
also  knowing  that  he  may  or  may  not  be  re-employed  or  re^ 
turned  to  service.  The  employer  has  the  option  of  acceding  to 
the  demand  and  returning  the  old  employees  to  service,  of 
employing  new  men,  or  of  forcing  conditions  under  which  the 
old  men  are  glad  to  return  to  service  under  the  old  conditions.” 
This  latter  definition  recognizes  the  idea  of  cessation  of  labor, 
but  not  an  abandonment  of  employment.  It  suggests  that  the 
latter  may  result  at  the  option  of  the  master.  It  does  not, 
in  terms,  declare  a  combination  to  extort,  or  to  oppress,  or  to 
interfere  in  any  way  with  the  business  of  the  employer,  ex¬ 
cept  as  injury  might  result'  as  an  incident  to  the  cessation  of 
service.  If  the  latter  be  the  correct  definition  of  a  strike, 
society  has  been  needlessly  alarmed.  I  doubt  if,  in  the  light  of 


6o 


AMERICAN  COURTS  IN  LABOR  CASES 


the  history  of  strikes,  the  child  would  be  recognized  by  this 
baptismal  name.  .  .  . 

Of  the  ideal  strike,  in  the  definition  proposed  at  the  argu¬ 
ment,  the  only  criticism  to  be  indulged  is  that  it  is  ideal,  and 
never  existed  in  fact.  Undoubtedly,  in  the  absence  of  restric¬ 
tive  contract,  workmen  have  a  right  by  concerted  action  to 
cease  work  to  procure  better  terms  of  service,  no  compulsion 
being  used  except  that  incident  to  the  cessation;  subject,  how¬ 
ever,  to  the  qualification,  at  least  with  respect  to  those  employ¬ 
ments  that  directly  concern  the  public  welfare,  that  reasonable 
notice  of  the  quitting  should  be  given.  But  such  is  not  the 
strike  of  history.  The  definition  suggested  is  misleading  and 
pretentious.  To  my  thinking,  a  much  more  exact  definition 
of  a  strike  is  this :  A  combined  effort  among  workmen  to  com¬ 
pel  the  master  to  the  concession  of  a  certain  demand,  by  pre¬ 
venting  the  conduct  of  his  business  until  compliance  with  the 
demand.  The  concerted  cessation  of  work  is  but  one  of, 
and  the  least  effective  of,  the  means  to  the  end ;  the  intimidation 
of  others  from  engaging  in  the  service,  the  interference  with, 
and  the  disabling  and  destruction  of,  property,  and  resort  to 
actual  force  and  violence,  when  requisite  to  the  accomplish¬ 
ment  of  the  end,  being  the  other,  and  more  effective,  means 
employed.  It  is  idle  to  talk  of  a  peaceable  strike.  None  such 
ever  occurred.  The  suggestion  is  impeachment  of  intelligence. 
From  first  to  last,  from  the  earliest  recorded  strike  to  that  in 
the  state  of  West  Virginia,  which  proceeded  simultaneously 
with  the  argument  of  this  motion,  to  that  at  Connellsville,  Pa., 
occurring  as  I  write,  force  and  turbulance,  violence  and 
outrage,  arson  and  murder,  have  been  associated  with  the 
strike  as  its  natural  and  inevitable  concomitants.  No  strike 
can  be  effective  without  compulsion  and  force.  That  com¬ 
pulsion  can  come  only  through  intimidation.  A  strike  with¬ 
out  violence  would  equal  the  representation  of  the  tragedy  of 
Hamlet  with  the  part  of  Hamlet  omitted.  ...  It  has  well 
been  said  that  the  wit  of  man  could  not  devise  a  legal  strike, 
because  compulsion  •  is  the  leading  idea  of  it.  A  strike  is 
essentially  a  conspiracy  to  extort  by  violence ;  the  means  em- 


THE  STRIKE 


6 1 

ployed  to  effect  the  end  being  not  only  the  cessation  of  labor 
by  the  conspirators,  but  the  necessary  prevention  of  labor  by 
those  who  are  willing  to  assume  their  places,  and,  as  a  last 
resort,  and  in  many  instances  an  essential  element  of  success, 
the  disabling  and  destruction  of  the  property  of  the  master; 
and  so,  by  intimidation  and  by  the  compulsion  of  force,  to 
accomplish  the  end  designed.  I  know  of  no  peaceable  strike. 
I  think  no  strike  was  ever  heard  of  that  was  or  could  be  suc¬ 
cessful  unaccompanied  by  intimidation  and  violence.  .  .  . 

“  The  common  rule,”  says  Mr.  Justice  Brewer,  “  as  to  strikes 
is  this :  Not  merely  do  the  employees  quit  the  employment,  and 
thus  handicap  the  employer  in  the  use  of  his  property,  and 
perhaps  in  the  discharge  of  duties  which  he  owes  to  the  public, 
but  they  also  forcibly  prevent  others  from  taking  their  places. 
It  is  useless  to  say  that  they  only  advise  ;  no  man  is  misled.” 

These  extreme  views  and  the  definition  of  a  strike  as 
formulated  by  Judge  Jenkins  came  up  for  discussion  in  the 
appeal  that  was  taken  of  this  case  to  the  circuit  court  of 
appeals.  Justice  Harlan  wrote  the  opinion.  Since  the  case 
had  arisen  over  the  violation  of  an  injunction  against  a 
strike,  the  justice  raises  the  question,  “What  is  to  be  deemed 
a  strike,  within  the  meaning  of  the  order  of  the  circuit 
court?”  The  definitions  in  the  former  opinion  are  then 
quoted  in  review.  The  conclusion  is : 

We  are  not  prepared,  in  the  absence  of  evidence,  to  hold, 
as  matter  of  law,  that  a  combination  among  employees,  having 
for  its  object  their  orderly  withdrawal  in  large  numbers  or 
in  a  body  from  the  service  of  their  employers,  on  account 
simply  of  a  reduction  in  their  wages,  is  not  a  “  strike  ”  within 
the  meaning  of  the  word  as  commonly  used.  [Quoting  Sir 
James  Hannan  (of  the  Queen’s  Bench)  in  support  of  this 
modified  view],  A  “strike”  is  properly  defined  as  a  “simul¬ 
taneous  cessation  of  work  on  the  part  of  the  workmen.” 

As  a  result  of  the  difference  of  definition,  the  injunction 


62 


AMERICAN  COURTS  IN  LABOR  CASES 


issued  by  Judge  Jenkins  was  modified  by  Justice  Harlan, 
so  as  to  indicate  more  clearly  what  acts  in  connection  with 
the  strike  were  enjoined. 

The  above  cases  enter  more  fully  into  the  discussion  of 
the  definition  of  a  strike  than  do  any  others.  The  state¬ 
ments  of  Judge  Jenkins  here  quoted  indicate  a  more  extreme 
view  than  would  be  accepted  by  the  judges  in  general.  The 
views  of  others  must  be  gathered,  however,  by  inference 
from  their  opinions.  Typical  statements  are  the  following: 
“  to  cease  working  in  a  body  by  prearrangement  until  a 
grievance  is  redressed.”  (Cumming  Case.)  “A  combi¬ 
nation  not  to  work  for  an  employer,  that  is  to  say,  of  a 
strike.”  (Reynolds  v.  Davis.) 

Accepting,  as  the  courts  generally  do,  the  more  liberal 
definition  of  a  strike,  evidence  is  not  lacking  that  it  is  not 
in  itself  illegal.  Unless  accompanied  by  acts  that  are  in 
themselves  unlawful  the  strike  is  not  denounced  by  the 
courts.  “  It  is  settled,  however,”  says  Judge  Loring  of 
Massachusetts,  “  that  laborers  have  a  right  to  organize  as 
labor  unions  to  promote  their  welfare.  Further,  there  is 
no  question  of  the  general  right  of  a  labor  union  to  strike. 
On  the  other  hand,  it  is  settled  that  some  strikes  by  a  labor 
union  are  illegal.”  (Pickett  v.  Walsh.)  And  again  the 
same  judge  states:  “  It  is  settled  in  this  commonwealth  that 
the  legality  of  a  combination  not  to  work  for  an  employer, 
that  is  to  say,  of  a  strike,  depends  upon  the  purpose  for 
which  the  combination  is  formed — the  purpose  for  which 
the  employees  strike.”  (Reynolds  v.  Davis.) 

Judge  Mitchell  of  Minnesota  has  defended  the  strike  on 
individualist  grounds  in  the  following  words : 

It  is  perfectly  lawful  for  any  man  (unless  under  contract 
obligation,  or  unless  his  employment  charges  him  with  some 
public  duty)  to  refuse  to  work  for  or  to  deal  with  any  man 


THE  STRIKE 


63 

or  class  of  men,  as  he  sees  fit.  This  doctrine  is  founded  upon 
the  fundamental  right  of  every  man  to  conduct  his  own  busi¬ 
ness  in  his  own  way,  subject  only  to  the  condition  that  he 
does  not  interfere  with  the  legal  rights  of  others.  And  as  has 
been  already  said,  the  right  which  one  man  may  exercise 
singly,  many,  after  consultation,  may  agree  to  exercise  jointly, 
and  make  simultaneous  declaration  of  their  choice.  This  has 
been  repeatedly  held  as  to  associations  or  unions  of  workmen, 
and  associations  of  men  in  other  occupations  or  lines  of  busi¬ 
ness  must  be  governed  by  the  same  principles.  (Bohn  Mfg. 
Co.  v.  Hollif,) 

Another  basis  for  justification  appears  in  some  opinions 
resting  on  the  implied  right  derived  from  the  right  to  or¬ 
ganize.  “  The  law,”  says  Judge  Sheldon  in  his  dissenting 
opinion, 

does  not  do  so  vain  a  thing  as  to  allow  the  formation  of  labor 
unions  and  to  declare  their  right  to  initiate  and  by  lawful 
means  to  carry  on  a  justifiable  strike,  and  then  refuse  them 
the  use  of  the  only  practical  means  by  which  their  acknowl¬ 
edged  rights  can  be  secured.  (Willcutt  v.  Bricklayers.) 

m  i 

“  If  it  be  true,”  argues  Judge  Holmes,  from  the  Massa¬ 
chusetts  bench, 

that  workingmen  may  combine  with  a  view,  among  other  things, 
to  getting  as  much  as  they  can  for  their  labor,  just  as  capital 
may  combine  with  a  view  to  getting  the  greatest  possible  re¬ 
turn,  it  must  be  true  that,  when  combined,  they  have  the  same 
liberty  that  combined  capital  has,  to  support  their  interests  by 
argument,  persuasion,  and  the  bestowal  or  refusal  of  those 
advantages  which  they  otherwise  lawfully  control.  (Vegelahn 
v.  Guntner.) 

One  of  the  most  comprehensive  statements  of  this  right 
is  in  the  National  Protective  Association  Case  in  the  New 
York  court  of  appeals.  The  statement  is  made  in  the  dis- 


64 


AMERICAN  COURTS  IN  LABOR  CASE± 


seating  opinion  of  Judge  Vann  and  is  adopted  by  Chief 
Justice  Parker  in  his  prevailing  opinion. 

It  is  not  the  duty  of  one  man  to  work  for  another  unless  he 
has  agreed  to,  and  if  he  has  so  agreed,  but  for  no  fixed  period, 
either  may  end  the  contract  whenever  he  chooses.  The  one 
may  work  or  refuse  to  work  at  will,  and  the  other  may  hire 
or  discharge  at  will.  The  terms  of  employment  are  subject 
to  mutual  agreement,  without  let  or  hindrance  from  any  one. 
If  the  terms  do  not  suit,  or  the  employer  does  not  please,  the 
right  to  quit  is  absolute,  and  no  one  may  demand  a  reason 
therefor.  Whatever  one  man  may  do  alone,  he  may  do  in 
combination  with  others,  provided  they  have  no  unlawful  ob¬ 
ject  in  view.  Mere  numbers  do  not  ordinarily  affect  the  qual¬ 
ity  of  the  act.  Workingmen  have  the  right  to  organize  for 
the  purpose  of  securing  higher  wages,  shorter  hours  of  labor, 
or  improving  their  relations  with  their  employers.  They  have 
the  right  to  strike  (that  is,  to  cease  working  in  a  body  by 
prearrangement  until  a  grievance  is  redressed),  provided  the 
object  is  not  to  gratify  malice,  or  inflict  injury  upon  others, 
but  to  secure  better  terms  of  employment  for  themselves.  A 
peaceable  and  orderly  strike,  not  to  harm  others,  but  to  im¬ 
prove  their  own  condition,  is  not  a  violation  of  law. 

After  quoting  these  words  Judge  Parker  continues: 

Stated  in  other  words,  the  propositions  quoted  recognize 
the  right  of  one  man  to  refuse  to  work  for  another  on  any 
ground  that  he  may  regard  as  sufficient,  and  the  employer 
has  no  right  to  demand  a  reason  for  it.  .  .  The  same  rule  ap¬ 
plies  to  a  body  of  men,  who,  having  organized,  for  purposes 
deemed  beneficial  to  themselves,  refuse  to  work.  Their  rea¬ 
sons  may  seem  inadequate  to  others,  but,  if  it  seems  to  be  in 
their  interest  as  members  of  an  organization  to  refuse  longer 
to  work,  it  is  their  legal  right  to  stop.  The  reason  may  no 
more  be  demanded,  as  a  right,  of  the  organization  than  of  an 
individual,  but  if  they  elect  to  state  the  reason,  their  right  to 
stop  work  is  not  cut  off  because  the  reason  seems  inadequate 


THE  STRIKE 


65 

or  selfish  to  the  employer  or  to  organized  society.  And  if  the 
conduct  of  the  members  of  an  organization  is  legal  in  itself, 
it  does  not  become  illegal  because  the  organization  directs  one 
of  its  members  to  state  the  reason  for  its  conduct. 

The  extract  above  quoted  from  Judge  Vann  is  adopted 
by  Chief  Justice  Beatty  of  California  in  Parkinson  v.  Build¬ 
ing  Trades  Council.  After  quoting  it  at  length  Justice 
Beatty  adds :  “  This  is  a  most  conservative  statement  of  the 
law.  It  embraces  nothing  that  is  not  conceded  at  this  day 
by  even  the  most  determined  opponents  of  the  principle  of 
the  strike.’’  The  view  stated  here  is  quite  generally  ac¬ 
cepted  by  the  courts  as  satisfactory.  The  additions  made  by 
Chief  Justice  Parker  are  not  however  so  generally  accepted. 
That  Chief  Justice  Beatty  is  willing  to  adopt  them  is  shown 
in  his  own  statement  that  follows  his  comment  on  Judge 
Vann’s  paragraph.  “  In  case  of  a  peaceable  and  ordinary 
strike,”  he  says,  “  without  breach  of  contract,  and  con¬ 
ducted  without  violence,  threats,  or  intimidation,  this  court 
would  not  inquire  into  the  motives  of  the  strikers.  Their 
acts  being  entirely  lawful,  their  motives  would  be  held  im¬ 
material.” 

The  strike,  as  such,  then,  has  come  to  be  generally  re¬ 
garded  by  the  courts  in  very  much  the  same  light  as  the 
labor  union.  Much  of  the  same  conditions  and  qualifica¬ 
tions  are  asserted  in  the  making  of  their  declarations.  In 
Willcutt  v.  Bricklayers  Union,  Judge  Hammond  found  that 
the  strike  which  the  court  was  asked  to  consider  had  four 
objects.  (1)  Increase  of  wages;  (2)  wages  paid  during 
working  hours,  amounting  “  merely  to  a  demand  for  a 
shorter  day;”  (3)  all  foremen  to  be  members  of  the  union; 
(4)  business  agents  of  unions  to  be  allowed  to  visit  any 
building  under  construction.  Of  these  four,  states  the  opin¬ 
ion,  the  first  and  second  were  “  properly  enforceable  by  a 


66 


AMERICAN  COURTS  IN  LABOR  CASES 


strike.”  The  third  and  fourth  raise  “  more  difficult  ques¬ 
tions.”  The  conclusion  is  interesting.  “  It  is  unnecessary- 
under  the  circumstances  to  determine  these  questions  [the 
third  and  fourth  demands]  as  the  plaintiff  [the  employer] 
replied  with  a  bare  refusal  of  all  the  demands.  We  are  of 
opinion  therefore  that  this  strike  must  be  regarded  as  simply 
a  strike  for  higher  wages  and  a  shorter  day.” 

The  point  is  clearly  put  by  Justice  Harlan  (Arthur  v. 
Oakes)  in  the  quotation  there  referred  to  from  Sir  James 
ITannen. 

I  am  of  opinion  that  strikes  are  not  necessarily  illegal.  .  .  . 
Legality  or  illegality  must  depend  on  the  means  by  which  it  is 
enforced,  and  on  its  objects.  It  may  be  criminal,  as  if  it  be  a 
part  of  a  combination  for  the  purpose  of  injuring  or  molesting 
either  masters  or  men ;  or  it  may  be  simply  illegal,  as  if  it  be 
the  result  of  an  agreement  depriving  those  engaged  in  it  of 
their  liberty  of  action ;  ...  or  it  may  be  perfectly  innocent, 
as  if  it  be  the  result  of  the  voluntary  combination  of  the  men 
for  the  purpose  only  of  benefiting  themselves  by  raising  their 
wages,  or  for  the  purpose  of  compelling  the  fulfillment  of  an 
engagement  entered  into  between  employers  and  employees, 
or  any  other  lawful  purpose. 

There  is  no  question,  then,  of  “  the  general  right  of  the 
labor  union  to  strike.”  But  a  general  rig*ht  is  often  a  vague 
right,  and  courts  do  not  deal  with  rights  that  are  general 
and  vague.  What  may  organizations  of  laborers  strike  for  ? 
Here  again  the  answer  is  not  as  specific  as  one  would  desire 
to  find  it.  If  the  object  be  to  secure  better  terms  of  em¬ 
ployment,  it  is  one  that  courts  will  endorse  generally.  Yet 
when  strikes  lead  to  litigation  and  courts  are  called  upon 
for  an  opinion,  the  general  principles  laid  down  do  not 
vary  materially  but  the  particulars  modify  the  application 
so  greatly  that  the  result  after  all  is  generally  confusing 
rather  than  clarifying.  The  reasoning  in  the  various  opin- 


THE  STRIKE 


6  7 

ions  wherever  expressed  at  all  fully  is  very  uniform.  One 
of  the  longest  utterances  illustrating  this  point  is  found  in 
the  oral  opinion  of  Justice  Brewer,  sitting  in  the  circuit 
court  in  1885.  The  effort  is  made  to  set  forth  to  the 
strikers  in  the  simplest  possible  form  of  expression  the  un¬ 
derlying  principles.  It  is  as  follows : 

I  think  a  few  preliminary  considerations,  in  reference  to 
the  common  rights  which  we  all  have  as  free  men  in  this 
country,  may  not  be  amiss.  Every  man  has  a  right  to  work 
for  whom  he  pleases,  and  to  go  where  he  pleases,  and  to  do 
what  he  pleases,  providing,  in  so  doing,  he  does  not  trespass 
on  the  rights  of  others.  And  every  man  who  seeks  another 
to  work  for  him  has  a  right  to  contract  with  that  man,  to  make 
such  an  agreement  with  him  as  will  be  mutually  satisfactory; 
and  unless  he  has  made  a  contract  binding  him  to  a  stipulated 
time,  he  may  rightfully  say  to  such  employee  at  any  time,  “  I 
have  no  further  need  for  your  services.” 

Now,  it  is  well  to  come  down  to  simple  things.  Supposing 
Mr.  Wheeler  has  a  little  farm  of  20  acres.  He  comes  to  Mr. 
Orr  and  says  to  him,  “  Here,  work  for  me,  will  you  ?”  and  Mr. 
Orr  goes  to  work  for  him  under  some  contract.  Now,  every 
one  of  us  realizes  the  fact  that  if  Mr.  Orr  is  tired  of  working 
there,  if  he  does  not  think  the  pay  is  satisfactory,  or  if  it  is  a 
mere  whim  of  his,  he  has  a  right  to  say,  “  Mr.  Wheeler,  I 
won’t  work  for  you  any  more,”  and  Mr.  Wheeler  would  have 
no  right  to  do  anything.  Mr.  Orr  is  a  free  man,  and  can  work 
for  whom  he  pleases,  and  as  long  as  he  pleases,  and  quit 
when  he  pleases ;  and  that  right  which  Mr.  Orr  has  Mr. 
Wheeler  has  also.  The  fact  that  Mr.  Wheeler  happens  to  be 
an  employer  does  not  abridge  his  freedom.  If  he  is  tired  of 
Mr.  Orr’s  work,  or  if  he  dislikes  the  man,  or  if  he  does  not 
want  any  more  of  his  assistance  on  his  place,  he  can  say  to 
Mr.  Orr,  and  say  very  properly,  “  I  have  paid  you  for  all  the 
time  you  have  worked ;  now  you  can  leave,  and  seek  work 
elsewhere.”  Those  are  common,  every-day,  simple  rules  of 
right  and  wrong  we  all  recognize.  Nobody  doubts  that.  No- 


68 


AMERICAN  COURTS  IN  LABOR  CASES 


body  would  think  for  a  moment,  in  a  simple  case  of  that  kind, 
of  questioning  the  right,  either  of  Mr.  Orr  to  quit  or  of  Mr. 
Wheeler  to  say,  “  You  may  leave.”  And  that  which  is  true 
in  these  simple  matters  where  there  is  a  little  piece  of  property, 
and  a  single  owner  and  a  single  laborer,  is  just  as  true  when 
there  is  a  large  property,  a  large  number  of  employees,  and  a 
corporation  is  the  owner.  Rules  of  right  and  wrong,  obli¬ 
gations  of  employer  and  obligations  of  employee,  do  not 
change  because  the  property  is  in  the  one  instance  a  little  bit 
of  real  estate,  and  in  the  other  a  large  railroad  property;  and 
if  we  apply  these  simple,  commonplace  rules  of  right  and 
wrong,  we  avoid,  oftentimes,  a  great  many  of  the  troubles 
into  which  we  come. 

Moving  on  a  little  further  to  another  matter.  Supposing 
Mr.  Wheeler  had  two  men  employed,  and  that  he  finds  that  in 
the  management  of  his  little  farm  he  is  not  making  enough 
so  that  he  can  afford  to  employ  two  laborers,  and  he  says  to 
one  of  them :  “  I  will  have  to  get  along  without  your  services, 
and  I  will  do  with  the  services  of  the  other,”  and  the  one 
leaves.  That  is  all  right.  Supposing  the  one  that  leaves  goes 
to  the  one  who  has  not  left  and  says  to  him:  “Now,  look 
here ;  leave  with  me,” — giving  whatever  reasons  he  sees  fit, 
whatever  reasons  he  can  adduce, — and  the  other  one  says : 
“  Well,  I  will  leave,”  and  he  leaves  because  his  co-laborer  has 
persuaded  him  to  leave, — has  urged  him  to  leave;  that  is  all 
right.  Mr.  Wheeler  has  nothing  to  say;  he  may  think  that  the 
reasons  which  the  one  that  is  leaving  has  given  to  the  one  that 
he  would  like  to  have  stay  are  frivolous,  not  such  as  ought  to 
induce  him  to  leave,  but  that  is  those  gentlemen’s  business. 
If  the  one  whom  he  would  like  to  have  stay  is  inclined  to  go 
because  his  friend  has  urged  him,  has  persuaded  him,  has  in¬ 
duced  him  to  leave,  Mr.  Wheeler  cannot  say  anything.  That 
is  the  right  of  both  these  men, — the  one  to  make  suggestions, 
give  reasons,  and  the  other  to  listen  to  them,  and  act  upon  them. 

But  supposing  .  .  .  one  is  discharged  and  the  other  wants 
to  stay,  is  satisfied  with  the  employment ;  and  the  one  that 
leaves  goes  around  to  a  number  of  friends  and  gathers  them, 


THE  STRIKE 


69 

and  they  come  around,  a  large  party  of  them, — a  party  with 
revolvers  and  muskets, — and  the  one  that  leaves  comes  to  the 
one  that  wants  to  stay  and  says  to  him:  “Now,  my  friends 
are  here ;  you  had  better  leave ;  I  request  you  to  leave the 
man  looks  at  the  party  that  is  standing  there ;  there  is  nothing 
but  a  simple  request, — that  is,  so  far  as  the  language  which  is 
used ;  there  is  no  threat ;  but  it  is  a  request  backed  by  a  dem¬ 
onstration  of  force,  a  demonstration  intended  to  intimidate, 
calculated  to  intimidate,  and  the  man  says :  “  Well,  I  would 
like  to  stay,  I  am  willing  to  work  here,  yet  there  are  too  many 
men  here,  there  is  too  much  of  a  demonstration;  I  am  afraid 
to  stay.”  Now,  the  common  sense  of  every  man  tells  him  that 
that  is  not  a  mere  request, — tells  him  that  while  the  language 
used  may  be  very  polite  and  be  merely  in  the  form  of  a  re¬ 
quest,  yet  it  is  accompanied  with  that  backing  of  force  in¬ 
tended  as  a  demonstration  and  calculated  to  make  an  im¬ 
pression;  and  that  the  man  leaves,  really  because  he  is  in¬ 
timidated. 

If  I  take  another  illustration  I  will  make  it  even  more  plain. 
Supposing  half  a  dozen  men  stop  a  coach,  with  revolvers  in 
their  hands,  and  one  man  asks  the  passengers  politely  to  step 
out  and  pass  over  their  valuables ;  and  they  step  out  and  pass 
over  their  valuables ;  and  supposing  those  men  should  be  put 
on  trial  before  any  court  for  robbery,  would  not  you  despise  a 
judge  that  would  say,  “Why,  there  was  no  violence;  there 
were  no  threats  ;  there  was  simply  a  request  to  those  passengers 
to  hand  over  their  valuables,  and  they  handed  them  over;  it 
was  simply  a  request  and  a  loan  of  their  valuables.”  Would 
not  the  common  sense  of  every  man  say  that  that  request,  no 
matter  how  politely  it  was  expressed,  was  a  request  backed 
by  a  demonstration  of  force  that  was  really  intimidation,  and 
made  the  offense  robbery?  Would  not  you  expect  any  judge 
to  say  that?  Would  not  you  despise  any  one  that  would  say 
otherwise?  .  .  . 

Then  there  is  another  proposition  that  comes  in, — a  familiar 
rule  of  law, — that  where  a  party  of  men  combine,  with  the  in¬ 
tent  to  do  an  unlawful  thing,  and  in  the  prosecution  of  that 


70 


AMERICAN  COURTS  IN  LABOR  CASES 


unlawful  intent  one  of  the  party  goes  a  step  beyond  the 
balance  of  the  party,  and  does  acts  which  the  balance  do  not 
themselves  perform,  all  are  responsible  for  what  the  one  does. 
In  order  to  make  that  rule  of  law  applicable,  there  must  be  a 
concert  of  action ;  an  agreement  to  do  some  unlawful  thing. 
If  there  is  no  such  agreement,  no  such  preconcert  of  action, 
why  then  each  individual  is  responsible  simply  for  what  he 
does.  Thus,  for  instance,  if  there  should  happen  to  gather 
here  on  the  street  50  or  100  or  200  men,  with  no  preconcert 
of  purpose,  accidentally  meeting  here,  and  a  street  fight  should 
develop  in  their  midst,  all  of  that  crowd  are  not  responsible 
for  it;  that  would  be  unjust;  that  would  be  unfair;  because 
they  did  not  go  there,  they  did  not  meet  together,  with  a  pre¬ 
concerted  purpose  to  do  anything  unlawful,  and,  although 
something  unlawful  may  be  done  in  that  crowd,  yet  only  they 
are  at  fault  who  do  the  unlawful  thing.  But  if  they  all  met, 
as  I  said,  for  the  purpose  of  doing  some  unlawful  act,  hav¬ 
ing  formed  beforehand  the  purpose  to  do  it,  and  are  present 
there  to  carry  that  purpose  into  effect,  then  every  man,  by 
virtue  of  uniting  in  that  preconceived  purpose  to  do  the 
unlawful  tl  mg,  makes  himself  responsible  for  what  any 
one  does. 

A  familiar  illustration  which  often  comes  before  a  court  is 
this :  Supposing  three  or  four  men  form  a  purpose  to  commit 
burglary,  and  break  into  a  house  for  the  purpose  of  committing 
that  burglary ;  that  is  all  they  had  intended  to  do ;  that  is  the 
unlawful  act,  and  the  single  unlawful  act,  which  they  had  set 
out  to  accomplish ;  they  get  into  the  house  and  somebody 
wakes  up,  and  one  of  the  party  shoots  and  kills.  Now,  the 
three  or  four  persons  who  went  into  that  house  never  formed 
beforehand  the  intent  to  kill  anybody;  they  simply  went  in 
there  to  commit  burglary;  but,  combining  to  do  that  unlaw¬ 
ful  thing,  in  the  prosecution  of  that  burglary,  and  to  make  it 
successful,  one  of  the  party  shoots  and  kills,  and  the  law 
comes  in  and  says :  “All  of  you  are  guilty  of  murder ;  we  do  not 
discriminate  between  you ;  you  broke  into  that  house  to  com¬ 
mit  burglary;  in  prosecution  of  that  burglarious  entrance  one 
of  your  party  committed  murder ;  all  are  guilty.” 


THE  STRIKE 


71 


Now  that  is  a  reasonable  rule,  when  you  stop  to  think  of 
it;  it  is  not  a  mere  harsh,  arbitrary,  technical  rule  which  the 
courts  have  laid  down,  and  the  statutes  have  established;  it 
is  a  rule  intended  to  prevent  combinations  or  conspiracies  to 
do  an  unlawful  thing,  and  where  there  are  many  together 
it  is  often  difficult  to  distinguish  the  one  who  does  any  par¬ 
ticular  act. 

In  1877  Judge  Drummond  of  the  United  States  circuit 
court  wrote  an  opinion  in  which  he  entered  fully  into  this 
point.  (King  v.  Railway  Co.)  The  strike  was  one  for  the 
purpose  of  securing  higher  wages  from  the  railroad  and 
the  strikers  had  succeeded  in  stopping  traffic.  Reference  is 
made  in  the  opinion  to  the  fact  that  wages  cannot  be  fixed 
arbitrarily  by  either  party. 

In  the  case  of  labor,  between  the  man  who  seeks  the  em¬ 
ployment  of  a  man  who  wants  to  employ  him,  [the  fixing  of 
wages]  is  a  matter  of  agreement  and  must  always  be.  There¬ 
fore,  it  may  as  well  be  impressed  upon  these  defendants,  as 
upon  all  other  persons,  that  it  is  not  possible  that  they  can 
say  precisely  how  much  they  shall  have  for  the  service  they 
perform,  they  have  no  right  to  dictate  to  their  employers  what 
they  shall  receive,  nor  has  the  employer  any  right  to  dictate  to 
them  what  he  shall  give.  It  is  a  matter  of  common  bargain 
and  agreement,  and  unless  it  can  be  settled  in  this  way  we 
have  to  destroy  all  the  relations  of  life.  You  cannot  go  into 
the  store  of  a  merchant  in  this  city  and  say,  I  will  give  you 
such  a  price  for  an  article,  and  leave  the  money  and  remove 
it  from  the  store.  No;  the  owner  of  the  article  has  a  right 
to  say  what  he  will  take  for  it,  as  well  as  the  purchaser  what 
he  will  give,  and  unless  they  agree  the  article  must  remain 
there. 

This  view  is  illustrative  of  the  reasoning  that  may  be 
found  in  practically  all  of  the  decisions  where  the  ques¬ 
tion  is  considered.  Of  course  it  does  not  settle  anything. 


72 


AMERICAN  COURTS  IN  LABOR  CASES 


If  the  employer  yields  to  the  employee,  then  the  employee 
has  prevailed.  If  the  employee  yields,  then  the  employer 
has  prevailed.  If  each  yields  in  part,  then  a  compromise  is 
reached.  The  right  to  bargain  has  been  exercised  by  both 
in  all  of  these  instances,  and  the  difficulties  are  settled  out 
of  court.  But  when  one  party  persists  stubbornly  and  the 
other  resists  as  stubbornly,  neither  one  yielding  to  the  other, 
what  are  the  rights  of  each  party?  To  say  that  the  em¬ 
ployer  may  manage  his  business  as  he  pleases  and  then,  by 
the  authority  of  the  court,  force  the  employee  against  his 
wishes,  is  obviously  no  more  right  than  would  it  be  to  say 
that  the  laborer  may  work  or  not,  as  he  pleases,  and  then, 
by  the  authority  of  the  court,  force  the  employer  against 
his  wishes.  The  question  that  the  court  has  to  determine 
is  how  far  either  party  may  go  in  its  attempts  to  coerce  the 
other  to  meet  its  demands. 

Until  the  recent  past,  the  advantage  has  rested  pretty  uni¬ 
formly  with  the  employer.  But  with  the  more  effective  or¬ 
ganization  and  more  intelligent  direction  of  workingmen 
the  employer  does  not  retain  the  advantage  that  he  once 
had.  The  contest  is  more  nearly  equal.  With  the  closer 
approximation  to  equality  has  come  stififer  fighting,  with 
consequences  far  more  serious  following  in  its  wake.  What 
are  the  rules  of  the  fight?  What  may  be  done  by  means 
of  a  strike? 

As  to  one  point  there  is  no  lack  of  agreement.  Laws 
must  not  be  violated.  Well-established  rights  must  not  be 
invaded.  Strikes  do  not  change  the  lawful  organization  of 
society.  Strikers  still  have  only  the  rights  of  all  men;  no 
others. 

It  must  be  borne  in  mind  (what  sometimes  seems  to  be  for¬ 
gotten  by  the  actors  upon  each  side  of  such  controversies)  that 
controversy  is  not  a  warfare  in  the  sense  that  for  the  time 
being  the  usual  rules  of  conduct  are  changed,  as  in  the  case  of 


THE  STRIKE 


73 


an  actual  war  between  two  countries.  There  is  no  martial  law 
in  these  cases,  no  change  in  the  ordinary  rules  of  society,  but 
these  rules  remain  the  same  as  before,  commanding  what  was 
theretofore  right  and  prohibiting  what  was  theretofore  wrong. 
(Willcutt  v.  Bricklayers  Union.) 

This  position  is  so  obvious  and  rational  that  it  will  not  be 
necessary  to  cite  other  extracts  to  illustrate  it.  Uniformly 
the  courts  stand  against  lawlessness  in  all  forms,  and  par¬ 
ticularly  in  the  form  of  destruction  of  property  and  the  in¬ 
vasion  of  personal  rights. 

The  purposes  of  a  strike  that  are  lawful  are  usually  stated 
as  Judge  Vann  stated  them  in  the  extract  that  has  been 
quoted  at  length.  These  are  to  secure  higher  wages,  shorter 
hours,  to  improve  their  relations  with  their  employers.  The 
right  to  strike  is  conceded  provided  the  object  be  “  not  to 
gratify  malice  or  inflict  injury  upon  others,  but  to  secure 
better  terms  of  employment  for  themselves “  not  to  harm 
others  but  to  improve  their  own  condition.”  In  comment¬ 
ing  on  this  statement,  Chief  Justice  Parker  in  the  same 
opinion  insists  that  “  the  enumeration  is  illustrative  rather 
than  comprehensive,”  and  holds  that  the  securing  of  the 
reemployment  of  an  employee  whom  they  regard  as  hav¬ 
ing  been  improperly  discharged,  and  employment  for  those 
of  their  union  who  are  out  of  employment  is  valid  reason 
for  a  strike. 

These  purposes  are  open  to  question  and  the  courts  are 
by  no  means  entirely  agreed  on  the  list.  It  is  true  that  cer¬ 
tain  purposes  are  admitted  to  belong  to  the  recognized  list, 
but  probably  no  one  would  contend  that  the  list  is  a  closed 
one.  One  or  two  instances  of  this  difficulty  will  indicate 
its  extent.  In  Pickett  v.  Walsh,  Judge  Loring  found  that 
the  strike  involved  other  important  rights  than  those  ex¬ 
isting  between  employer  and  employee.  His  opinion  is,  in 
part,  as  follows: 


✓  4 


AMERICAN  COURTS  IN  LABOR  CASES 


That  strike  has  an  element  in  it  like  that  in  a  sympathetic 
strike,  in  a  boycott  and  in  a  blacklisting,  namely :  It  is  a  refusal 
to  work  for  A.,  with  whom  the  strikers  have  no  dispute,  be¬ 
cause  A.  works  for  B.,  with  whom  the  strikers  have  a  dis¬ 
pute,  for  the  purpose  of  forcing  A.  to  force  B.  to  yield  to 
the  strikers’  demands.  .  .  .  That  passes  beyond  a  case  of  com¬ 
petition.  ...  It  is  a  combination  by  the  union  to  obtain  a  de¬ 
cision  in  their  favor  by  forcing  third  persons  who  have  no 
interest  in  the  dispute  to  force  the  employer  to  decide  the  dis¬ 
pute  in  [the  defendant  union’s]  favor.  Such  a  strike  is  not  a 
justifiable  interference  with  the  right  of  the  plaintiffs  to  pur¬ 
sue  their  calling  as  they  think  best.  In  our  opinion  organized 
labor’s  right  of  coercion  and  compulsion  is  limited  to  strikes 
on  persons  with  whom  the  organization  has  a  trade  dispute; 
or  to  put  it  in  another  way,  we  are  of  opinion  that  a  strike  on 
A.,  with  whom  the  striker  has  no  trade  dispute,  to  compel  A. 
to  force  B.  to  yield  to  the  strikers’  demands,  is  an  unjustifiable 
interference  with  the  right  of  A.  to  pursue  his  calling  as  he 
thinks  best. 

Judge  Taft  holds  that  even  the  right  to  quit  an  employ¬ 
ment  is  not  absolute.  On  this  point  he  has  spoken  in  two 
opinions. 

(i)  All  the  employees  had  the  right  to  quit  their  employ¬ 
ment,  but  they  had  no  right  to  combine  to  quit  in  order  there¬ 
by  to  compel  their  employer  to  withdraw  from  a  mutually  pro¬ 
fitable  relation  with  a  third  person  for  the  purpose  of  injur¬ 
ing  that  third  person,  when  the  relation  thus  sought  to  be 
broken  had  no  effect  whatever  on  the  character  or  reward  of 
their  service.  It  is  the  motive  for  quitting,  and  the  end  sought 
thereby,  that  makes  the  injury  inflicted  unlawful,  and  the  com¬ 
bination  by  which  it  is  effected,  an  unlawful  conspiracy.  The 
distinction  between  an  ordinary  lawful  and  peaceable 
strike  entered  upon  to  obtain  concessions  in  the  terms  of  the 
strikers’  employment  and  a  boycott  is  not  a  fanciful  one,  or 
one  which  needs  the  power  of  fine  distinction  to  determine 


THE  STRIKE 


75 


which  is  which.  Every  laboring  man  recognizes  the  one  or 
the  other  as  quickly  as  the  lawyer  or  the  judge.  (Thomas  v. 
Cincinnati  &  C.  Ry.  Co.) 

(2)  But  it  is  said  that  it  cannot  be  unlawful  for  an  employee 
either  to  threaten  to  quit  or  actually  to  quit  the  service  when 
not  in  violation  of  his  contract,  because  a  man  has  the  in¬ 
alienable  right  to  bestow  his  labor  where  he  will,  and  to  with¬ 
hold  his  labor  as  he  will.  Generally  speaking,  this  is  true, 
but  not  absolutely.  If  he  uses  the  benefit  which  his  labor  is  or 
will  be  to  another,  by  threatening  to  withhold  it  or  agreeing 
to  bestow  it,  or  by  actually  withholding  it  or  bestowing  it,  for 
the  purpose  of  inducing,  procuring,  or  compelling  that  other 
to  commit  an  unlawful  or  criminal  act,  the  withholding  or 
bestowdng  of  his  labor  for  such  a  purpose  is  itself  an  un¬ 
lawful  and  criminal  act.  The  same  thing  is  true  with  regard 
to  the  exercise  of  the  right  of  property.  A  man  has  the  right 
to  give  or  sell  his  property  where  he  will,  but  if  he  give  or 
sell  it,  or  refuse  to  give  or  sell  it,  as  a  means  of  inducing  or 
compelling  another  to  commit  an  unlawful  act,  his  giving  or 
selling  it  or  refusal  to  do  so  is  itself  unlawful. 

Herein  is  found  the  difference  between  the  act  of  the  em¬ 
ployees  of  the  complainant  company  in  combining  to  with¬ 
hold  the  benefit  of  their  labor  from  it  and  the  act  of  the  em¬ 
ployees  of  the  defendant  companies  in  combining  to  withhold 
their  labor  from  them,  that  is,  the  difference  between  the 
strike  and  the  boycott.  The  one  combination,  so  far  as  its 
character  is  shown  in  the  evidence,  was  lawful,  because  it  was 
for  the  lawful  purpose  of  selling  the  labor  of  those  en¬ 
gaged  in  it  for  the  highest  price  obtainable,  and  on  the  best 
terms.  The  probable  inconvenience  or  loss  which  its  em¬ 
ployees  might  impose  on  the  complainant  company  by  with¬ 
holding  their  labor  would,  under  ordinary  circumstances,  be 
a  legitimate  means  available  to  them  for  inducing  a  com¬ 
pliance  with  their  demands.  But  the  employees  of  defendant 
companies  are  not  dissatisfied  with  the  terms  of  their  employ¬ 
ment.  So  far  as  appears,  those  terms  work  a  mutual  benefit 
to  employer  and  employed.  What  the  employees  threaten  to 


AMERICAN  COURTS  IN  LABOR  CASES 


76 

do  is  to  deprive  the  defendant  companies  of  the  benefit  thus 
accruing  from  their  labor,  in  order  to  induce,  procure,  and 
compel  the  companies  and  their  managing  officers  to  consent 
to  do  a  criminal  and  unlawful  injury  to  the  complainant. 
Neither  law  nor  morals  can  give  a  man  the  right  to  labor  or 
withhold  his  labor  for  such  a  purpose.  (Toledo  &c.  Ry.  Co. 
v.  Pa.  Co.) 

These  various  views  may  be  summed  up  in  the  statement 
of  two  positions.  The  first  deals  with  the  right  to  strike, 
and  may  be  expressed  as  follows :  A  man’s  right  to  stop 
work  when  he  chooses  or  to  accept  or  reject  conditions  as 
he  chooses  is  a  part  of  his  personal  rights.  He  can  not  be 
compelled  to  work  against  his  wishes  (contract  conditions 
and  conditions  of  crime  of  course  being  exceptions).  This 
right  is  elementary.  With  the  right  to  form  organizations 
for  purposes  of  improving  working  conditions  conceded,  it 
follows  that  combinations  may  be  formed  to  do  what  one 
may  do.  That  is  to  say,  the  rights  that  one  man  has  with 
reference  to  choice  of  conditions  of  labor  many  in  combina¬ 
tion  have.  If  one  stops  working  because  he  chooses  to, 
many  working  under  the  same  conditions,  or  organized  for 
mutual  advantage,  may  do  the  same  because  they  choose, 
even  if  it  is  through  the  organization  that  they  have  learned 
of  the  advantage  and  because  of  it  that  they  have  made 
their  choice.  The  advantage  of  acting  in  concert  is  an  ad¬ 
vantage  that  belongs  to  all  combination ;  combination  of 
capital,  of  employers,  and  of  all  others  as  well  as  of  labor¬ 
ers. 

The  second  statement  concludes  that  the  strike  is  not  law¬ 
ful,  reasoning  by  the  following  stages :  The  common  law  of 
England  inherited  by  the  United  States  holds  that  combi¬ 
nation  to  affect  wages  is  an  injury  to  trade  and  therefore 
an  unlawful  conspiracy.  Whether  or  not  a  man  may  cease 
work  depends  upon  what  his  motive  is.  But  as  one  man 


THE  STRIKE 


77 


cannot  commonly  do  much  harm  by  ceasing  to  work  even 
with  an  evil  motive,  the  matter  yields  to  the  personal  right 
of  such  a  man  to  cease  work  anyway.  When  many  unite 
to  cease  at  the  same  time  the  chance  of  accomplishing  the 
unlawful  motive  becomes  greater.  This  becomes  a  basis 
for  holding  that  the  motive  makes  the  strike  wrong.  Or 
again,  the  acts  of  many  in  combination  increase  the 
chances  for  success  and  therefore  undue  pressure  is  brought 
to  bear  upon  the  employer.  This  may  be  coercion  and  the 
wrong  lies  in  the  combination  of  many  to  do  what  one  alone 
might  do.  This  may  be  illustrated  by  an  extract  from 
Pickett  v.  Walsh. 

A  successful  strike  by  laborers  means,  in  many  if  not  most 
cases,  that  for  practical  purposes  the  strikers  have  such  a  con¬ 
trol  of  the  labor  which  the  employer  must  have  that  he  has 
to  yield  to  their  demands.  A  single  individual  may  well  be 
left  to  take  his  chances  in  a  struggle  with  another  individual. 
But  in  a  struggle  with  a  number  of  persons  combined  together 
to  fight  an  individual,  the  individual’s  chance  is  small,  if  it 
exists  at  all.  It  is  plain  that  a  strike  by  a  combination  of 
persons  has  a  power  of  coercion  which  an  individual  does 
not  have. 

Further  discussion  would  involve  the  consideration  of 
motive  and  combination.  These  points  will  be  dealt  with 
in  another  place. 

These  differences  find  their  way  into  the  discussions 
written  by  legal  authorities.  As  it  is  no  part  of  the  present 
object  to  decide  the  question  of  the  legality  of  strikes,  it 
will  be  sufficient  to  indicate  this  difference  by  two  references. 
Cogley,  in  The  Law  of  Strikes,  Lockouts,  and  Labor  Or¬ 
ganizations,  makes  a  distinction  between  a  strike  and  a 
stopping  of  work. 

While  a  strike  is  quitting  work,  yet  it  is  accompanied  with 


78 


AMERICAN  COURTS  IN  LABOR  CASES 


the  distinguishing  feature  of  being  done  by  prearrangement 
between  many  workmen  to  cease  working  simultaneously  at  a 
given  time  and  for  the  express  purpose  of  injuring  or  crip¬ 
pling,  in  some  way,  the  employer  in  his  business.  ...  It  is 
evident  from  the  nature  of  things  that  the  purpose  of  a  strike 
is  to  extort,  by  force  of  numbers,  intimidation  and  coercion, 
and  by  crippling  his  business  by  quitting  at  the  busiest  season 
and  preventing  other  employees  from  taking  their  places,  some 
concession  from  the  master.  .  .  .  From  the  definitions  given, 
all  strikes  are  illegal.  The  wit  of  man  could  not  devise  a 
legal  one.  Because  compulsion  is  the  leading  idea  of  a  strike.1 

Stimson,  in  Hand-book  to  the  Labor  Law  of  the  United 
States ,  takes  the  opposite  view. 

A  recent  text-book  upon  strikes  and  boycotts  goes  so 
far  as  to  say  that  there  can  be  no-  such  thing  as  a  legal 
strike.  The  truth  is  probably  the  exact  opposite.  Instead  of 
saying  no  strikes  are  legal,  we  should  now  say  all  strikes  are 
legal ;  that  is,  all  plain  and  simple  combinations  to  quit  work 
when  there  is  no  breach  of  a  definite  time-contract  in  so  do¬ 
ing,  and  where  it  is  not  complicated  with  any  element  of  boy¬ 
cotting,  or  marked  by  any  disorder  or  intimidation.  When 
these  latter  exist,  it  is  the  boycotting,  disorder,  or  intimida¬ 
tion  that  is  illegal,  and  may  be  punished  or  prevented  by  in¬ 
junction;  not  the  strike.2 

The  development  of  the  court’s  attitude  is  evident.  Bound 
at  first  to  the  precedent  of  conspiracy,  there  has  been  a 
steady  movement  toward  a  more  liberal  view.  Personal 
rights  have  been  more  fully  recognized  as  applicable.  Prob- 

1  Pp.  2,  3,  223.  For  fuller  discussion  of  Cogley’s  view  see  the  fol¬ 
lowing  pages,  1-6,  98-103,  223-247. 

2  P.  194.  See  further  pp.  177-179,  194-222.  This  same  subject  is 
well  treated  in  an  article  by  Darling,  Recent  American  Decisions  and 
English  Legislation  Affecting  Labor  Unions,  American  Law  Rev.. 
vol.  42,  p.  200,  Mch.-Apl.,  1908.  See  especially  pp.  209-228. 


THE  STRIKE 


79 


ably  the  rights  will  be  still  further  extended.  “  Every  man, 
as  I  have  stated,’’  wrote  Judge  Drummond,  of  the  circuit 
court  in  1877, 

has  a  right  to  leave  the  service  of  his  employer  if  he  is  not 
satisfied  with  the  wages  he  gets,  but  men  ought  not  to  com¬ 
bine  together  and  cause  at  once  a  strike  among  all  railroad  em¬ 
ployees,  so  as  to  prevent  the  running  of  trains,  because  the  in¬ 
jury  there  is  public  in  its  character. 

This  statement  written  at  that  comparatively  early  date, 
may  be  regarded  as  a  remnant  of  the  idea  that  there  was 
something  wrong  in  the  combination,  something  that 
savored  of  conspiracy :  Men  ought  not  to  combine  together 
and  do  what  every  man  has  a  right  to  do.  This  view  is  not 
to  be  found  in  later  opinions.  It  gave  way  to  the  typical 
view  of  the  next  stage  in  the  development,  the  view  that 
the  Massachusetts  courts  have  developed  most  fully.  In 
the  words  of  Judge  Loring,  as  late  as  1908: 

It  is  settled  in  this  commonwealth,  that  the  legality  of  a  com¬ 
bination  not  to  work  for  an  employer,  that  is  to  say,  of  a 
strike,  depends  (  in  case  the  strikers  are  not  under  contract  to 
work  for  him)  upon  the  purpose  for  which  the  combination 
is  formed  —  the  purpose  for  which  the  employees  strike. 
(Reynolds  v.  Davis.) 

The  most  advanced  position  is  that  adopted  by  Chief 
Justice  Parker  and  the  majority  of  the  New  York  court  of 
appeals  in  the  National  Protective  Association  case.  The 
opinion  was  written  in  1902,  six  years  earlier  than  the 
Massachusetts  case  just  referred  to.  Yet  it  states  in  the 
most  unqualified  way  that  laborers  may  strike  for  any 
reason  that  seems  to  them  sufficient.  They  need  not  state 
their  reasons.  If,  however,  they  choose  to  state  them 

their  right  to  stop  work  is  not  cut  off  because  the  reason  seems 


8o 


AMERICAN  COURTS  IN  LABOR  CASES 


inadequate  or  selfish  to  the  employer  or  to  organized  society. 
And  if  the  conduct  of  the  members  of  an  organization  is  legal 
in  itself,  it  does  not  become  illegal  because  the  organization 
directs  one  of  its  members  to  state  the  reason  for  its  conduct. 

This  view  is  more  radical  than  many  judges  are  yet  ready 
to  accept.  In  several  instances  they  have  declined  to  ac¬ 
cept  it  as  authority  when  cited  by  counsel  in  briefs.  It 
probably  will  be  more  widely  accepted  as  time  passes.  The 
development  of  judicial  opinion  as  expressed  in  the  cases 
that  have  been  reviewed  certainly  tends  toward  it,  rather 
than  toward  a  less  liberal  view. 


CHAPTER  V 


i 


The  Boycott 

The  term  boycott  has  come  to  be  so  familiar  in  the  in¬ 
dustrial  world  that  it  would  seem  quite  unnecessary  to  pause 
to  define  it.  The  fact  is,  however,  that  while  in  general  use 
the  word  has  no  universally  accepted  definition.  For  ordi¬ 
nary  conversation  this  vagueness  is  not  a  serious  drawback. 
But  when  the  courts  have  to  use  the  term  the  necessity  for 
a  clearer  definition  is  apparent.  “  The  most  casual  obser¬ 
vation,”  wrote  Judge  Halloway  of  Montana,  as  late  as 
1908,  “  will  disclose  that  scarcely  any  two  courts  treating 
of  the  subject  formulate  the  same  definition.”  (Lindsay  & 
Co.  v.  Montana  F.  of  L.)  Reference  is  made  in  this  opinion 
to  three  definitions,  as  follows : 

(1)  A  combination  of  many  to  cause  a  loss  to  one  person 
by  coercing  others,  against  their  will,  to  withdraw  from  him 
their  beneficial  business  intercourse,  through  threats  that,  un¬ 
less  others  do  so,  the  many  will  cause  similar  loss  to  them. 
(2)  An  organized  effort  to  exclude  a  person  from  business 
relations  with  others  by  persuasion,  intimidation,  and  other 
acts  which  tend  to  violence,  and  thereby  coerce  him,  through 
fear  of  resulting  injury,  to  submit  to  dictation  in  the  manage¬ 
ment  of  his  affairs.  (3)  A  combination  between  persons  to 
suspend  or  discontinue  dealings  or  patronage  with  another  per¬ 
son  or  persons  because  of  the  refusal  to  comply  with  a  re¬ 
quest  of  him  or  them. 

“  We  prefer,”  adds  Judge  Halloway,  “  a  broader  defini- 

81 


82 


AMERICAN  COURTS  IN  LABOR  CASES 


tion,  and  one  we  deem  more  consonant  with  present-day 
conditions,”  and  cites  the  following  from  another  case: 

I  think  that  the  verb  “  to  boycott  ”  does  not  necessarily  signify 
that  the  doers  employ  violence,  intimidation,  or  other  unlaw¬ 
ful  coercive  means;  but  that  it  may  be  correctly  used  in  the 
sense  of  the  act  of  a  combination,  in  refusing  to  have  business 
dealings  with  another  until  he  removes  or  ameliorates  condi¬ 
tions  which  are  deemed  inimical  to  the  welfare  of  the  mem¬ 
bers  of  the  combination,  or  some  of  them,  or  grants  concessions 
which  are  deemed  to  make  for  that  purpose. 

In  Barr  v.  Essex  Trades  Council  Vice  Chancellor  Green 
refers  to  the  sense  in  which  the  term  is  used  by  the  unions. 
The  counsel  for  the  unionists  claimed  that  the  word  boy¬ 
cott 

does  not  in  any  way  mean,  indicate,  or  imply  any  threats, 
violence,  intimidation,  or  coercive  action.  .  .  .  that  such  word 
has  a  technical  meaning  in  the  said  labor  organizations,  and 
simply  expresses  and  implies  that  the  members  of  the  said 
organizations  should  simply  refrain  from  trading  or  dealing 
with  those  persons  who  oppose  such  organizations  by  their 
own  actings  and  doings ;  that  the  use  of  the  word  .  .  .  merely 
advises  and  encourages  those  who  have  earned  their  money, 
by  giving  their  services  and  labor,  to  spend  such  money 
among  those  who  are  friendly  to  fair  trade  and  fair  dealings, 
and  are  in  sympathy  with  the  efforts  of  organized  labor  to 
advance  its  own  interests  and  welfare  by  peaceable,  proper, 
and  lawful  means,  and  not  otherwise. 

To  this  the  judge  pointed  out  that 

the  difficulty  is  that  these  communications  were  addressed  to 
the  public,  and  indiscriminately  circulated.  They  were  not 
intended  only  for  members  of  the  order  by  whom  a  technical 
signification  would  be  given  to  the  word  “boycott,”  but  for  the 
general  public,  who  would  read  them,  and  give  the  word  its 


THE  BOYCOTT  83 

accepted  meaning.  [What  that  meaning  is  appears  from  the 
following  definitions]  : 

“An  organized  attempt  to  coerce  a  person  or  party  into  com¬ 
pliance  with  some  demand,  by  combining  to  abstain,  or  compel 
others  to  abstain,  from  having  any  business  or  social  relations 
with  him  or  it;  an  organized  persecution  of  a  person  or  com¬ 
pany,  as  a  means  of  coercion  or  intimidation,  or  of  retaliation 
for  some  act,  or  refusal  to  act  in  a  particular  way.”  (Century 
Dictionary.)  “A  conspiracy  formed  and  intended  directly  or 
indirectly  to  prevent  the  carrying  on  of  any  lawful  business, 
or  to  injure  the  business  of  any  one  by  wrongfully  preventing 
those  who  would  be  customers  from  buying  anything  from, 
or  employing  the  representatives  of,  said  business,  by  threats, 
intimidation,  or  other  forcible  means.”  (Am.  and  Eng.  En¬ 
cyclopedia  of  Law.)  “A  combination  between  persons  to  sus¬ 
pend  or  discontinue  dealings  or  patronage  with  another  person 
or  persons,  because  of  refusal  to  comply  with  a  request  of  him 
or  them.  The  purpose  is  to  constrain  acquiescence  or  to  force 
submission  on  the  part  of  the  individual  who,  by  noncom¬ 
pliance  with  the  demand,  has  rendered  himself  obnoxious  to 
the  immediate  parties,  and  perhaps  to  their  personal  and  fra¬ 
ternal  associates.”  (Anderson’s  Law  Dictionary.)  “The 
word  in  itself  implies  a  threat.  In  popular  acceptation,  it  is 
an  organized  effort  to  exclude  a  person  from  business  rela¬ 
tions  with  others  by  persuasion,  intimidation,  and  other  acts, 
which  tend  to  violence,  and  they  coerce  him,  through  fear  of 
resulting  injury,  to  submit  to  dictation  in  the  management  of 
his  affairs.”  (Brace  v.  Evans.,  Pennsylvania’s  leading  case.) 

Judge  Carpenter  of  Connecticut  (State  v.  Glidden),  in 
discussing  the  meaning  of  the  term,  says, 

That  word  is  not  easily  defined.  It  is  frequently  spoken  of 
as  passive  merely, — a  let-alone  policy;  a  withdrawal  of  all 
business  relations,  intercourse,  and  fellowship.  If  that  is 
its  only  meaning,  it  will  be  difficult  to  find  anything  in  it 
criminal.  We  may  gather  some  idea  of  its  real  meaning,  how- 


84 


AMERICAN  COURTS  IN  LABOR  CASES 


ever,  by  a  reference  to  the  circumstances  in  which  the  word 
originated. 

Here  follows  a  paragraph  from  McCarty’s  England  under 
Gladstone,  describing  the  experiences  of  Captain  Boycott 
as  agent  of  Lord  Earne,  in  attempting  to  collect  rents.  The 
judge  then  adds: 

If  this  is  a  correct  picture,  the  thing  we  call  a  boycott  ori¬ 
ginally  signified  violence,  if  not  murder.  If  the  defendants, 
in  their  hand-bills  and  circulars,  used  the  word  in  its  original 
sense,  .  .  .  there  can  be  no  doubt  of  their  criminal  intent. 
.  .  .  We  prefer,  however,  to  believe  that  they  used  it  in  a 
modified  sense.  As  an  importation  from  a  foreign  country, 
we  may  presume  that  they  intended  it  in  a  milder  sense, — in  a 
sense  adapted  to  the  laws,  institutions,  and  temper  of  our 
people.  In  that  sense  it  may  not  have  been  criminal.  But 
even  here,  if  it  means,  as  some  high  in  the  confidence  of  the 
trades  union  assert,  absolute  ruin  to  the  business  of  the  person 
boycotted  unless  he  yields,  then  it  is  criminal. 

Chief  Justice  Grant  of  Michigan  (Beck  v.  Railway  Team¬ 
sters)  also  cites  several  references  to  definitions.  He  does 
not  believe  that  the  term  “  has  no  authoritative  meaning.’’ 
On  the  contrary  he  states  that  “  the  term  has  been  defined 
by  lexicographers  and  courts.” 

This  list  of  definitions  may  be  closed  with  that  given  by 
Judge  Taft  in  Toledo  &c.  Ry.  Co.  v.  Penn.  Co.,  and  widely 
cited  in  both  state  and  federal  courts. 

As  usually  understood,  a  boycott  is  a  combination  of  many 
to  cause  a  loss  to  one  person  by  coercing  others,  against  their 
will,  to  withdraw  from  him  their  beneficial  business  inter¬ 
course,  through  threats  that,  unless  those  others  do  so,  the 
many  will  cause  similar  loss  to  them.  Ordinarily,  when  such 
a  combination  of  persons  does  not  use  violence,  actual  or 
threatened,  to  accomplish  their  purpose,  it  is  difficult  to  point 


THE  BOYCOTT 


S5 

out  with  clearness  the  illegal  means  or  end  which  makes  the 
combination  an  unlawful  conspiracy;  for  it  is  generally  law¬ 
ful  for  the  combiners  to  withdraw  their  intercourse  and  its 
benefits  from  any  person,  and  to  announce  their  intention  of 
doing  so,  and  it  is  equally  lawful  for  the  others,  of  their  own 
motion,  to  do  that  which  the  combiners  seek  to  compel  them 
to  do.  Such  combinations  are  said  to  be  unlawful  con¬ 
spiracies,  though  the  acts  in  themselves  and  considered  singly 
are  innocent,  when  the  acts  are  done  with  malice,  i.  e.,  with 
the  intention  to  injure  another  without  lawful  excuse. 

So  far  as  these  legally-accepted  definitions  go,  those  au¬ 
thorities  that  express  some  doubt  as  to  the  exact  meaning 
of  the  term  seem  to  be  right.  Those  who  admit  of  no 
vagueness  would  have  to  reject  some  of  the  definitions  that 
others  accept. 

That  the  weight  of  opinion  is  on  the  side  of  the  illegality 
of  the  boycott  seems  not  to  be  open  to  question.  Cogley, 
in  the  work  already  referred  to,  has  no  doubt  on  the  sub¬ 
ject.1  “  A  boycott,”  he  says,  “  is  one  of  the  most  serious 
forms  of  intimidation  resorted  to  during  strikes.”  To  the 
definitions  that  have  been  quoted  in  the  preceding  pages  he 
adds  one  from  Black’s  Law  Dictionary : 

A  conspiracy  formed  and  intended  directly  or  indirectly  to 
prevent  the  carrying  on  of  any  lawful  business,  or  to  injure 
the  business  of  any  one  by  wrongfully  preventing  those  who 
would  be  customers  from  buying  anything  from  or  employing 
the  representatives  of  said  business,  by  threats,  intimidation, 
or  other  forcible  means. 

He  declares  that  a  boycott,  in  the  sense  in  which  he  under¬ 
stands  the  term,  is  an  intimidation,  an  “  illegal  conspiracy 
at  common  law  and  punishable.”  That  this  writer  has  al¬ 
lowed  his  feelings  to  influence  him  somewhat  is  evident 


1  Pp.  249-290. 


86 


AMERICAN  COURTS  IN  LABOR  CASES 


from  the  way  in  which  he  characterizes  boycotters.  He 
says  : 


Undoubtedly  every  person  has  the  right  to  select  those  upon 
whom  they  wish  to  bestow  favors  or  their  patronage.  But 
men  who  will  wantonly  conspire  to  boycott  inanimate  objects, 
simply  because  men  of  their  own  trade  and  calling  who  did 
not  belong  to  their  associations  built  them,  are  monsters  who 
place  themselves  outside  the  pale  of  the  law  and  should  be  ex¬ 
terminated  from  the  face  of  the  earth.  They  place  them¬ 
selves  on  a  level  of  the  anarchist,  whose  religion  and  creed 
is  the  destruction  of  all  existing  systems  of  property,  society, 
government  and  religion. 

The  sentences  that  follow  grow  more  rather  than  less  ex¬ 
treme.1  Much  more  satisfactory  to  read  are  the  statements 
of  Stimson  in  his  Hand-book.2  His  conclusions  are  that  the 
boycott  belongs  to  the  class  of  unlawful  conspiracies 
“  wherein  the  intent  becomes  of  importance.”  It  is  a  com¬ 
bination  primarily  to  injure.  “  The  prime  question  in  the 
law  of  boycott  is  that  of  intent.”  From  his  study  of  the 
cases  and  the  laws  upon  which  they  rest  his  conclusion  is 
that  “  just  as  simple  strikes  are  nearly  always  lawful,  so 
boycotts  are  nearly  always  unlawful.”  He  uses  the  word 
boycott  as  “  meaning  exclusively  an  unlawful  conspiracy.”  3 

While  what  has  been  said  above  would  lead  one  to  be¬ 
lieve  that  there  is  no  divided  opinion  on  the  legality  of  boy¬ 
cotting,  the  reading  of  the  opinions  does  not  fully  justify 
such  a  conclusion.  There  are  two  quite  distinct  lines  of 
reasoning,  one  positively  hostile  to  the  boycott,  and  another 
tolerant  and  in  some  respects  even  friendly.  In  the  para- 

1  Cf.,  pp.  253-254.  2  Cf.,  pp.  222-290. 

3  See  also  Darling,  “  Recent  American  Decisions  and  English  Legis¬ 
lation  Affecting  Labor  Unions,  American  Law  Rev.,  vol.  42,  p.  200, 
Mch.-Apl.,  1908. 


THE  BOYCOTT  87 

graphs  that  follow  will  be  found  the  expression  of  these 
two  distinct  lines  of  reasoning. 

The  fundamental  idea  is  briefly  expressed  by  Judge 
Brown  of  Minnesota  (Gray  v.  Building  Trades  Council.) 

A  boycott,  as  generally  understood,  is  held  by  nearly  all  the 
authorities  to  be  an  unlawful  conspiracy.  .  .  .  [The  courts] 
have  very  generally  condemned  those  combinations  usually 
termed  “  boycotts,”  which  are  formed  for  the  purpose  of  in¬ 
terfering,  otherwise  than  by  lawful  competition,  with  the  busi¬ 
ness  affairs  of  others,  and  depriving  them,  by  means  of  threats 
and  intimidation  of  the  right  to  conduct  the  business  in  which 
they  happen  to  be  engaged  according  to  the  dictates  of  their 
own  judgment.  .  .  .  The  authorities  proceed  on  the  theory 
that  they  are  unlawful  interferences  with  property  rights. 

Emphasis  is  laid  in  many  opinions  upon  the  fact  that  the 
business  is  the  property  of  the  owner,  and  that  organized 
refusal  to  buy  is  malicious  intention  to  destroy  that  prop¬ 
erty.  Thus  Judge  Carpenter  of  Connecticut  in  one  of  the 
strongest  of  the  anti-boycott  opinions  exclaims: 

It  seems  strange  that  in  this  day  and  this  free  country — a 
country  in  which  law  interferes  so  little  with  the  liberty  of  the 
individual — that  it  should  be  necessary  to  announce  from  the 
bench  that  every  man  may  carry  on  his  business  as  he  pleases, 
may  do  what  he  will  with  his  own  so  long  as  he  does  nothing 
unlawful,  and  acts  with  due  regard  to  the  rights  of  others; 
and  that  the  occasion  for  such  an  announcement  should  be,  not 
an  attempt  by  government  to  interfere  with  the  rights  of  the 
citizen,  nor  by  the  rich  and  powerful  to  oppress  the  poor,  but 
an  attempt  by  a  large  body  of  working-men  to  control,  by 
means  little  if  any  better  than  force,  the  action  of  employers. 
.  .  .  The  principle,  if  it  once  obtains  a  foothold,  is  aggressive, 
and  is  not  easily  checked.  It  thrives  on  what  it  feeds,  and  is 
insatiate  in  its  demands.  More  requires  more.  If  a  large 
body  of  irresponsible  men  demand  and  receive  power  outside 


88 


AMERICAN  COURTS  IN  LABOR  CASES 


of  law,  over  and  above  law,  it  is  not  to  be  expected  that  they 
will  be  satisfied  with  a  moderate  and  reasonable  use  of  it.  .  .  . 

They  [the  boycotters]  had  not  the  right  to  say:  “  You  shall 
do  this,  or  we  will  ruin  your  business.”  Much  less  had  they  a 
right  to  proceed  to  ruin  its  business.  In  such  a  case  the  direct 
and  primary  object  must  be  regarded  as  the  destruction  of  the 
business.  The  fact  that  it  is  designed  as  a  means  to  an  end, 
and  that  end,  in  itself  considered,  a  lawful  one,  does  not  divest 
the  transaction  of  its  criminality.  (State  v.  Glidden.) 

Again,  Vice  Chancellor  Green  enforces  the  point  in  the 
following  words : 

Mr.  Barr’s  business  of  publishing  the  paper,  with  the  in¬ 
cidents  of  its  circulation  and  advertising,  was  as  much  his 
property  as  were  the  type  and  presses  upon  which  the  paper 
was  printed.  A  harmful  interference  with  the  circulation  and 
with  the  advertising  in  his  paper  was  therefore  an  injury  to 
his  property.  .  .  .  The  acts  of  the  defendants  directly  infringe 
upon  the  exercise  of  this  right  by  Mr.  Barr.  True,  explicitly 
in  words,  they  recognize  the  right,  and  protest  earnestly  that 
they  have  no  wish  to  interfere  with  him  in  the  management 
of  his  business,  with  such  means  as  he  may  select ;  but  is  it 
not  perfectly  apparent  that  the  only  purpose  of  the  movement 
is  to  force  him  to  abandon  his  determination  to  use  plate 
matter  in  the  make  up  of  his  newspaper?  (Barr  v.  Essex 
Trades  Council.) 

The  writer  pauses  to  recogmize  the  right  of  the  printers  to 
strike,  even  to  “  combine  to  leave  the  service  of  their  em¬ 
ployer.”  But  the  strikers  did  not  stop  there.  'They  enlisted 
the  aid  of  the  Essex  Trades  Council,  “  which  boasts  (and  I 
have  no  doubt  truly)  of  a  purchasing  power  of  $400,000  a 
week.”  Through  the  organized  activity  of  the  Council  the 
members  withheld  their  patronage  from  the  paper  and  its 
advertisers.  This  was  done  through  a  “  moral  intimida¬ 
tion  ”  to  “  further  cripple  the  paper.” 


THE  BOYCOTT 


89 

To  say  that  this  is  only  advice  or  an  intimation  to  the  ad¬ 
vertiser,  for  his  guidance  if  he  sees  fit  to  accept  it,  is  trifling 
with  the  language.  Advice,  behind  which  lurks  the  threat  of 
the  withdrawal  of  such  a  volume  of  business,  could  have  no 
other  effect  than  to  intimidate  and  coerce. 

The  importance  of  the  fact  of  combination  is  emphasized 
in  the  same  opinion. 

It  is  said  that  [the  boycott]  was  only  the  exercise  by  each 
person  of  his  right  to  spend  his  money  as  his  own  will  dictated. 
The  fallacy  of  this  is  apparent.  It  loses  sight  of  the  com¬ 
bination,  the  whole  strength  of  which  lies  in  the  fact  that  each 
individual  has  surrendered  his  own  discretion  and  will  to  the 
direction  of  the  accredited  representative  of  all  the  organiza¬ 
tions.  He  no  longer  uses  his  own  judgment,  but  by  entering 
into  the  combination  agrees  to  be  bound  by  its  decree. 

Of  the  question  of  motive  or  intent  and  its  bearing  on  the 
boycott,  there  is  also  some  discussion.  Still  reading  from 
the  opinion  that  has  just  been  quoted  the  following  para¬ 
graph  appears : 

This  renders  necessary  an  inquiry  as  to  the  intent  of  the  de¬ 
fendants,  to  ascertain  if  the  case  falls  within  the  class  in  which 
it  is  held  that  a  malicious  motive  in  the  defendant  may  make 
an  act  which  would  not  be  wrongful  without  the  malice  a 
wrongful  act  when  done  with  malice.  From  the  authorities, 
the  test  is,  has  the  injury  been  inflicted  intentionally  and 
without  legal  excuse?  When  we  speak,  in  this  connection, 
of  an  act  done  with  a  malicious  motive,  it  does  not  necessarily 
imply  that  the  defendants  were  actuated  in  their  proceedings  by 
spite  or  malice  against  the  complainant  Mr.  Barr,  in  the  sense 
that  their  motive  was  to  injure  him  personally,  but  that  they 
desired  to  injure  him  in  his  business  in  order  to  force  him  not 
to  do  what  he  had  a  perfect  right  to  do.  In  this  case  the 
defendants  have,  I  doubt  not,  no  personal  spite  against  Mr. 
Barr  individually,  and  no  desire  to  do  him  a  personal  injury. 


90 


AMERICAN  COURTS  IN  LABOR  CASES 


Nor  do  I  suppose  they  wish  to  permanently  injure  his  enter¬ 
prise,  for  they  undoubtedly  want  re-employment  for  those  who 
left  him.  They  only  wish,  by  crippling  his  business,  to  com¬ 
pel  him  to  accede  to  their  views  as  to  materials  he  shall  use 
in  the  make  up  of  his  paper.  They  in  fact  claim  that  they 
had  no  intention  to  injure  the  business  of  the  complainant,  and 
that  their  only  desire  was  for  the  protection  of  themselves.  If 
the  injury  which  has  been  sustained,  or  which  is  threatened, 
is  not  only  the  natural,  but  the  inevitable,  consequence  of  the 
defendants’  acts,  it  is  without  effect  for  them  to  disclaim  the 
intention  to  injure.  It  is  folly  for  a  man  who  deliberately 
thrusts  a  firebrand  into  a  rick  of  hay  to  declare,  after  it  has 
been  destroyed,  that  he  did  not  intend  to  burn  it.  If  a  person 
deliberately  discharges  a  loaded  pistol  at  pointblank  range, 
directly  at  the  person  of  another,  it  is  useless  for  him  to  say 
that  he  did  not  intend  to  maim  his  victim.  The  law,  as  a 
rule,  presumes  that  a  person  intends  the  natural  result  of  his 
act ;  and  this  is  true  with  reference  to  civil  as  well  as  criminal 
acts. 

One  of  the  most  elaborate  opinions  against  the  boycott 
is  that  by  Judge  Taft.  It  was  first  written  from  the  bench 
of  the  Cincinnati  superior  court,  in  general  term,  with  the 
intention,  as  President  Taft  has  since  said,  of  attempting 
“  to  explain  what  was  the  illegality  of  the  boycott.”  1  The 
case  was  appealed  to  the  supreme  court  of  Ohio  and  there 
affirmed  without  opinion.  Presumably  the  view  of  the 
lower  court  was  approved.  The  view  there  expressed  was 
later  quoted  at  length  by  Judge  Taft  himself  when  circuit 
judge,  in  Thomas  v.  Cincinnati  N.  O.  &  T.  P.  Ry.  Co. 
This  view  has  been  widely  accepted  and  is  one  of  the  most 
authoritative  statements  of  the  illegality  of  the  boycott. 

We  are  dealing  in  this  case  with  common  rights.  Every 
man,  be  he  capitalist,  merchant,  employer,  laborer,  or  profes- 

1  McClure’s  Mag.,  vol.  xxxiii,  p.  204  June,  1909. 


THE  BOYCOTT 


91 


sional  man,  is  entitled  to  invest  his  capital,  to  carry  on  his 
business,  to  bestow  his  labor,  or  to  exercise  his  calling,  if 
within  the  law,  according  to  his  pleasure.  Generally  speaking, 
if,  in  the  exercise  of  such  a  right  by  one,  another  suffers  a 
loss,  he  has  no  ground  for  action.  Thus,  if  two  merchants 
are  in  the  same  business  in  the  same  place,  and  the  business  of 
the  one  is  injured  by  the  competition,  the  loss  is  caused  by 
the  other’s  pursuing  his  lawful  right  to  carry  on  business  as 
seems  best  to  him.  In  this  legitimate  clash  of  common  rights 
the  loss  which  is  suffered  is  damnum  absque  injuria.  So  it 
may  reduce  the  employer’s  profits  that  his  workmen  will  not 
work  at  former  prices,  and  that  he  is  obliged  to  pay  on  a 
higher  scale  of  wages.  The  loss  which  he  sustains,  if  it  can 
be  called  such,  arises  merely  from  the  exercise  of  the  work¬ 
man’s  lawful  right  to  work  for  such  wages  as  he  chooses,  and 
to  get  as  high  rate  as  he  can.  It  is  caused  by  the  workman, 
but  it  gives  no  right  of  action.  Again,  if  a  workman  is  called 
upon  to  work  with  the  material  of  a  certain  dealer,  and  it  is 
of  such  a  character  as  either  to  make  his  labor  greater  than 
that  sold  by  another,  or  is  hurtful  to  the  person  using  it,  or 
for  any  other  reason  is  not  satisfactory  to  the  workman,  he 
may  lawfully  notify  his  employers  of  his  objection,  and  refuse 
to  work  it.  The  loss  of  the  material  man  in  his  sales  caused 
by  such  action  of  the  workman  is  not  a  legal  injury,  and  not 
the  subject  of  action.  And  so  it  may  be  said  that  in  these  re¬ 
spects  what  one  workman  may  do,  many  may  do,  and  many 
may  combine  to  do  without  giving  the  sufferer  any  right  of 
action  against  those  who  cause  the  loss.  But  on  this  common 
ground  of  common  rights,  where  every  one  is  lawfully  strug¬ 
gling  for  the  mastery,  and  where  losses  suffered  must  be  borne, 
there  are  losses  willfully  caused  to  one  by  another  in  the 
exercise  of  what  otherwise  would  be  a  lawful  right,  from 
simple  motives  of  malice. 

The  normal  operation  of  competition  in  trade  is  the  keep¬ 
ing  away  or  getting  away  patronage  from  rivals  by  induce¬ 
ments  offered  to  the  trading  public.  The  normal  operation 
of  the  right  to  labor  is  the  securing  of  better  terms  by  refus- 


92 


AMERICAN  COURTS  IN  LABOR  CASES 


ing  to  contract  to  labor  except  on  such  terms.  ...  If  the  work¬ 
men  of  an  employer  refuse  to  work  for  him  except  on  better 
terms,  at  a  time  when  their  withdrawal  will  cause  great  loss 
to  him,  and  they  intentionally  inflict  such  loss  to  coerce  him  to 
come  to  their  terms,  they  are  bona  fide  exercising  their  lawful 
rights  to  dispose  of  their  labor  for  the  purpose  of  lawful  gain. 
But  the  dealings  between  Parker  Bros,  and  their  material 
men,  or  between  such  material  men  and  their  customers,  had 
not  the  remotest  natural  connection  either  with  defendants’ 
wages  or  their  other  terms  of  employment.  There  was  no 
competition  or  possible  contractual  relation  between  plaintiffs 
and  defendants  where  their  interests  were  naturally  opposed. 
The  right  of  the  plaintiffs  to  sell  their  material  was  not  one 
which,  in  its  exercise,  brought  them  into  legitimate  conflict 
with  the  rights  of  defendants  to  dispose  of  their  labor  as  they 
chose.  The  conflict  was  brought  about  by  the  effort  of  de¬ 
fendants  to  use  plaintiffs’  right  of  trade  to  injure  Parker 
Bros.,  and,  upon  failure  of  this,  to  use  plaintiffs’  customers’ 
right  of  trade  to  injure  plaintiffs.  Such  effort  cannot  be  in 
the  bona  fide  exercise  of  trade,  is  without  just  cause,  and  is, 
therefore,  malicious.  The  immediate  motive  of  defendants 
here  was  to  show  to  the  building  world  what  punishment  and 
disaster  necessarily  followed  a  defiance  of  their  demands.  The 
remote  motive  of  wishing  to  better  their  condition  by  the 
power  so  acquired  will  not,  as  we  think  we  have  shown, 
make  any  legal  justification  for  defendants’  acts. 

A  rather  unusual  line  of  argument  dealing  with  the  boy¬ 
cott  as  it  influences  parties  three  or  four  stages  removed 
from  those  concerned  in  the  controversy  is  traced  by  Vice 
Chancellor  Stevenson  of  New  Jersey.  (Booth  v.  Burgess.) 

Coming  now  to  the  facts  of  the  case  before  the  court,  we 
find  at  the  beginning  of  the  line  of  dealers  whose  right  to 
contract  and  right  to  a  free  market  must  be  recognized,  the 
complainant,  a  manufacturer  and  an  employer  of  labor,  on  the 
one  hand,  and  a  free  combination  of  about  twenty-five  former 


THE  BOYCOTT 


93 


employees  of  the  complainant  on  the  other.  No  one  has  sug¬ 
gested  in  this  case  that  these  two  parties  are  not  wholly  within 
their  respective  rights  in  the  conduct  which  they  have  volun¬ 
tarily  pursued.  The  motives  of  the  free  combination  of  em¬ 
ployees  for  refusing  to  renew  their  contracts  of  employment, 
whether  moral  or  immoral,  “  malicious  ”  or  benevolent,  are  en¬ 
tirely  beyond  judicial  inquiry.  Passing  a  step  further,  we 
find  the  customers  of  the  complainant,  the  boss  carpenters  and 
contractors  of  Hudson  county.  If  these  boss  carpenters  volun¬ 
tarily  combine  to  refrain  from  purchasing  goods  from  the  com¬ 
plainant,  they  would  thereby  violate  no  right  of  the  com¬ 
plainant,  and  the  complainant  would  have  no  action  at  law  or 
in  equity  against  them,  notwithstanding  the  fact  that  this  com¬ 
bined  action,  this  entirely  voluntary  boycott,  might  cause  great 
damage  to  the  complainant  in  its  business.  These  boss  car¬ 
penters  might  notify  the  complainant  that  if  it  employed  non¬ 
union  workmen  they  would  cease  to  deal  with  it,  or  they  might 
by  their  threat  of  a  voluntary  removal  of  their  custom  in  any 
other  way  dictate  to  the  complainant  how  its  business  should 
be  conducted,  and  in  fact  coerce  the  complainant  to  discharge 
its  nonunion  hands  and  re-employ  the  strikers.  That  such 
coercion  cannot  constitute  the  tort  with  which  we  have  to  deal 
has  sometimes  been  overlooked.  In  such  case  the  plaintiff’s 
right  of  free  market  is  not  violated.  The  boss  carpenters  are 
simply  exercising  their  absolute  right  to  refrain  from  con¬ 
tracting.  Each  of  the  two  dealers  is  free,  and  each  has  the 
full  advantage  of  the  freedom  of  the  other.  Passing  still  a 
step  further,  we  come  to  the  employees  of  the  boss  carpenters. 
We  have  now  four  parties  to  the  affair  in  hand,  and  the  situ¬ 
ation  has  become  more  complex,  but  after  all  there  is  no  diffi¬ 
culty,  it  seems  to  me,  in  solving  the  problems  which  the  situ¬ 
ation  presents.  The  employees  of  the  boss  carpenters,  in  the 
exercise  of  their  absolute,  unquestionable  right  to  refrain  from 
being  employed,  and  their  further  unquestionable  right  to  do 
this  thing  in  voluntary  combination,  may  from  good  motives 
or  bad  motives  notify  the  boss  carpenters  that  if  they  take 
“  unfair  ”  material  from  the  complainant  they  will  cease  to 


94 


AMERICAN  COURTS  IN  LABOR  CASES 


renew  their  contracts  of  employment,  and  thus  the  boss  car¬ 
penters  may  be  coerced  to  refrain  from  dealing  with  the  com¬ 
plainant,  and  this  coercion  may  in  turn  coerce  the  complainant 
to  discharge  its  nonunion  men  and  take  back  the  strikers. 
Still  we  have  no  case  of  coercion  which  can  constitute  the  tort 
with  which  we  are  dealing,  because  at  the  very  basis  of  the 
entire  series  of  transactions  which  we  are  examining  we  find 
only  a  free  combination  of  dealers  exercising  their  absolute 
right  to  refrain  from  dealing,  so  that  all  inquiry  into  motives 
is  excluded.  The  tort  under  consideration,  which  necessarily 
involves  coercion,  consists  in  a  violation  of  some  dealer’s  right 
to  a  free  market.  In  the  case  which  we  have  now  reached, 
there  is  no  such  right  belonging  to  the  complainant  or  to  its 
customers,  the  boss  carpenters,  which  is  in  any  way  invaded. 
Coercion  which  results,  however  directly  and  intentionally, 
from  the  exercise  of  the  absolute  right  to  refrain  from  con¬ 
tracting,  cannot  possibly  be  a  tort,  because  it  violates  no  legal 
right ;  it  is  a  mere  incidental  result  of  the  assertion  and  en¬ 
joyment  of  a  right.  Taking  one  more  step,  at  last  we  come 
to  the  defendants.  If  it  appeared  that  these  defendants  in¬ 
dividually  or  in  free  combination  were  merely  exercising  their 
right  to  refrain  from  contracting,  then,  no  matter  how  damag¬ 
ing  to  the  complainant  such  conduct  might  be,  no  right  of  the 
complainant  would  be  violated,  and  the  defendants  would  be 
guilty  of  no  tort.  I  know  of  no  reason  why  the  chain  which 
I  have  been  following  up  link  by  link  might  not  be  inde¬ 
finitely  extended.  The  employees  of  the  boss  carpenters  In 
turn  might  be  constrained  by  a  most  powerful  coercion  to  re¬ 
frain  from  continuing  in  the  employ  of  their  masters  by  a 
voluntary  combination  of  other  dealers  in  labor  or  merchandise, 
but  if  this  last  set  of  dealers  were  merely  exercising  their 
absolute  right  to  refrain  from  contracting  with  the  employees 
of  the  boss  carpenters,  unless  these  employees  submitted  Xo 
their  dictation,  it  seems  to  me  beyond  all  question  that  we  have 
not  yet  reached  any  tort  or  found  any  one  liable  to  an  action 
at  law  or  in  equity  for  the  relief  of  any  of  the  parties  in  this 
long  chain,  no  matter  how  enormous  the  pecuniary  damage  of 


THE  BOYCOTT 


95 


such  party  may  be.  But  in  fact  we  have  come  to  the  end  of 
the  chain,  and  we  find  that  the  powerful  coercive  force  origin¬ 
ating  there  which  draws  dealers  away  from  the  complainant 
at  the  other  end  of  the  chain  is  not  the  voluntary  exercise  of 
the  right  to  refrain  from  contracting.  The  pull  at  the  far  end 
of  the  chain  is  given  by  the  defendant  Burgess,  the  business 
agent  of  this  powerful  labor  organization  in  Hudson  county, 
when  he  snaps  his  fingers  and  the  employees  of  the  boss  cor- 
penters  against  their  will  are  coerced  to  refrain  from  renew¬ 
ing  their  contracts  for  labor  with  their  employers  by  the  fear 
of  fines,  expulsion  from  their  labor  unions,  social  ostracism, 
and  poverty. 

The  United  States  supreme  court  has  passed  upon  the 
boycott,  but  its  decision  was  based  on  its  interpretation  of 
the  anti-trust  act  of  1890  rather  than  on  a  statement  of 
common-law  principles.  The  case  was  that  of  Loewe  v. 
Lawlor.  It  was  held  that  the  terms  of  the  law  were  such 
as  to  include  all  combinations,  whether  of  laborers  or  others, 
if  there  was  restraint  of  trade.  Whether  or  not  the  court 
finds  in  the  statute  its  only  reason  for  condemning  the 
boycott  is  left  somewhat  in  doubt  by  the  insertion  into  the 
opinion  of  the  following : 

The  combination  charged  falls  within  the  class  of  restraints 
of  trade  aimed  at  compelling  third  parties  and  strangers  in¬ 
voluntarily  not  to  engage  in  the  course  of  trade  except  on 
conditions  that  the  combination  imposes ;  and  there  is  no  doubt 
that  (to  quote  from  the  well-known  work  of  Chief  Justice 
Erie  on  Trade  Unions)  “  at  common  law  every  person  has  in¬ 
dividually,  and  the  public  also  has  collectively,  a  right  to  re¬ 
quire  that  the  course  of  trade  should  be  kept  free  from  un¬ 
reasonable  obstructions.” 

Judge  Powers  of  Vermont  took  a  position  as  indicated  in 
the  following  extract: 


96 


AMERICAN  COURTS  IN  LABOR  CASES 


That  evils  exist  in  the  relations  of  capital  and  labor,  and 
that  workmen  have  grievances  that  oftentimes  call  for  relief, 
are  facts  that  observing  men  cannot  deny.  With  such  ques¬ 
tions  we,  as  a  court,  have  no  function  to  discharge  further  than 
to  say  that  the  remedy  cannot  be  found  in  the  boycott.  (State 
v.  Stewart.) 

While  the  references  quoted  and  the  cases  referred  to 
make  it  clear  that  the  weight  of  authority  is  against  the 
boycott,  at  the  same  time  opinions  have  been  expressed  by 
some  courts  that  lead  to  the  opposite  conclusion.  These 
views  have  for  the  most  part  been  declared  quite  recently, 
and  show  a  tendency  to  greater  freedom  from  the  idea  that 
coercion  and  intimidation  are  a  necessary  part  of  the  boy¬ 
cott.  There  is  one  exception  to  the  statement  that  these 
opinions  are  recent.  That  is  the  case  of  Payne  v.  Western 
Atlantic  Railroad  Co.,  decided  by  the  supreme  court  of 
Tennessee  in  1884.  In  the  opinion  the  principle  of  the  boy¬ 
cott  is  fully  discussed.  It  is  interesting  to  note  however 
that  the  contention  was  between  the  railroad  company  and 
certain  stores.  The  railroad  had  posted  the  following 
notice :  “  Any  employee  of  this  company  on  Chattanooga 
payroll  who  trades  with  L.  Payne  from  this  date  will  be  dis¬ 
charged.”  Payne  brought  action  for  damages  against  the 
road.  The  employees  were  not  directly  concerned.  It  will 
be  noticed  that  much  of  the  argument  deals  with  the  right 
to  strike  and  the  right  to  discharge,  but  the  fundamental 
principle  of  the  boycott  as  a  legal  act  runs  through  the  en¬ 
tire  section. 

The  novelty,  interest  and  importance  of  the  questions  de¬ 
mand  a  careful  examination  of  the  cases  and  the  principles  in¬ 
volved.  The  case  turns  upon  the  common  law.  The  first 
question  is:  Is  it  unlawful  for  one  person,  or  a  number  of 
persons  in  conspiracy,  to  threaten  to  discharge  employees  if 
they  trade  with  a  certain  merchant?  Would  it  be  unlawful  to 


THE  BOYCOTT 


97 

discharge  them  for  such  reason?  If  not,  it  surely  would  not 
be  unlawful  to  “  threaten  ”  it.  .  .  . 

For  any  one  to  do  this  without  cause  is  censurable  and  un¬ 
just.  But  is  it  legally  wrong?  Is  it  unlawful?  May  I  not 
refuse  to  trade  with  any  one?  May  I  not  forbid  my  family 
to  trade  with  any  one?  May  I  not  dismiss  my  domestic  ser¬ 
vant  for  dealing,  or  even  visiting,  where  I  forbid?  And  if  my 
domestic,  why  not  my  farm-hand,  or  my  mechanic,  or  teamster? 
And  if  one  of  them,  then  why  not  all  four?  And  if  all  four, 
why  not  a  hundred  or  a  thousand  of  them?  The  principle  is 
not  changed  or  affected  by  the  number.  And  if  it  were,  who 
should  say  how  many  it  would  be  lawful  and  how  many  un¬ 
lawful  to  forbid?  Nor  can  it  be  better  determined  by  effect 
than  by  number.  To  keep  away  one  customer  might  not  per¬ 
ceptibly  affect  the  merchant's  trade;  deprived  of  a  hundred  of 
them,  he  might  fail  in  business.  On  the  contrary,  my  own 
dealings  may  be  so  important  that  if  I  cease  to  trade  with  him, 
he  must  close  his  doors.  Shall  my  act  in  keeping  away  a 
hundred  of  my  employees  be  unlawful,  because  it  breaks  up 
the  merchant’s  business,  and  yet  it  be  lawful  for  me  to  accom¬ 
plish  the  same  result  by  withholding  my  own  custom  ? 

Obviously  the  law  can  adopt  and  maintain  no  such  stand¬ 
ards  for  judging  human  conduct;  and  men  must  be  left  with¬ 
out  interference  to  buy  and  sell  where  they  please,  and  to  dis¬ 
charge  or  retain  employees  at  will  for  good  cause  or  for  no 
cause,  or  even  for  bad  cause,  without  thereby  being  guilty  of 
an  unlawful  act  per  se.  It  is  a  right  which  an  employee  may 
exercise  in  the  same  way,  to  the  same  extent,  for  the  same 
cause  or  want  of  cause  as  the  employer.  He  may  refuse  to 
work  for  a  man  or  company,  that  trades  with  any  obnoxious 
person,  or  does  other  things  which  he  dislikes.  He  may  per¬ 
suade  his  fellows,  and  the  employer  may  lose  all  his  hands  and 
be  compelled  to  close  his  doors ;  or  he  may  yield  to  the  demand 
and  withdraw  his  custom  or  cease  his  dealings,  and  the  ob¬ 
noxious  person  be  thus  injured  or  wrecked  in  business.  Can  it 
be  pretended  that  for  this  either  of  the  injured  parties  has  a 
right  of  action  against  the  employees?  Great  loss  may  result, 


AMERICAN  COURTS  IN  LABOR  CASES 


98 

indeed  has  often  resulted  from  such  conduct;  but  loss  alone 
gives  no  right  of  action.  Great  corporations,  strong  associa¬ 
tions,  and  wealthy  individuals  may  thus  do  great  mischief  and 
wrong ;  may  make  and  break  merchants  at  will ;  may  crush  out 
competition,  and  foster  monopolies,  and  thus  greatly  injure  in¬ 
dividuals  and  the  public;  but  power  is  inherent  in  size  and 
strength  and  wealth;  and  the  law  cannot  set  bound  to  it,  un¬ 
less  it  is  exercised  illegally.  Then  it  is  restrained  because  of 
its  illegality,  not  because  of  its  quantity  or  quality.  The  great 
and  rich  and  powerful  are  guaranteed  the  same  liberty  and 
privilege  as  the  poor  and  weak.  All  may  buy  and  sell  when 
they  choose ;  they  may  refuse  to  employ  or  dismiss  whom  they 
choose,  without  being  thereby  guilty  of  a  legal  wrong,  though 
it  may  seriously  injure  and  even  ruin  others. 

Railroad  corporations  have  in  this  matter  the  same  right  en¬ 
joyed  by  manufacturers,  merchants,  lawyers  and  farmers.  All 
may  dismiss  their  employees  at  will,  be  they  many  or  few,  for 
good  cause,  for  no  cause,  or  even  for  cause  morally  wrong, 
without  being  thereby  guilty  of  legal  wrong.  A  fortiori  they 
may  “  threaten  ”  to  discharge  them  without  thereby  doing  an 
illegal  act,  per  se.  The  sufficient  and  conclusive  answer  to  the 
many  plausible  arguments  to  the  contrary,  portraying  the  evil 
to  workmen  and  to  others  from  the  exercise  of  such  authority 
by  the  great  and  strong,  is :  They  have  the  right  to  discharge 
their  employees.  The  law  cannot  compel  them  to  employ 
workmen,  nor  to  keep  them  employed.  If  they  break  con¬ 
tracts  with  workmen  they  are  answerable  only  to  them;  if  in 
the  act  of  discharging  them  they  break  no  contract,  then  no 
one  can  sue  for  loss  suffered  thereby.  Trade  is  free,  so  is  em¬ 
ployment.  The  law  leaves  employer  and  employee  to  make 
their  own  contracts ;  and  these,  when  made,  it  will  enforce ; 
beyond  this  it  does  not  go.  Either  the  employer  or  employee 
may  terminate  the  relation  at  will,  and  the  law  will  not  inter¬ 
fere,  except  for  contract  broken.  This  secures  to  all  civil  and 
industrial  liberty.  A  contrary  rule  would  lead  to  a  judicial 
tyranny  as  arbitrary,  irresponsible  and  intolerable  as  that  ex¬ 
ercised  by  Scroggs  and  Jeffreys.  .  .  . 


THE  BOYCOTT 


99 


If  defendants,  by  means  of  “  threats  and  intimidation,”  have 
driven  away  plaintiff’s  customers  and  thus  destroyed  his  trade, 
they  have  injured  him  by  an  unlawful  act,  and  are  liable  to 
him  in  damages  whether  they  did  it  wickedly  and  maliciously 
or  not.  For  it  is  unlawful  to  threaten  and  intimidate  one’s  cus¬ 
tomers  ;  and  the  loss  of  trade  is  the  natural  and  proximate  re¬ 
sult  of  such  acts.  But  “  threats  and  intimidations  ”  must  be 
taken  in  their  legal  sense.  In  law  a  threat  is  a  declaration  of 
an  intention  or  determination  to  injure  another  by  the  com¬ 
mission  of  some  unlawful  act;  and  an  intimidation  is  the  act 
of  making  one  timid  or  fearful  by  such  declaration.  If  the 
act  intended  to  be  done  is  not  unlawful,  then  the  declaration 
is  not  a  threat  in  law,  and  the  effect  thereof  is  not  intimidation 
in  a  legal  sense.  So  too  of  the  alleged  conspiracy.  A  con¬ 
spiracy  is  an  agreement  between  two  or  more  persons  to  do 
an  unlawful  act.  If  the  act  to  be  done  is  not  unlawful  then 
the  agreement  or  combination  is  not  a  conspiracy.  .  .  . 

The  question  then  is,  is  an  act  not  unlawful  rendered  action¬ 
able  to  the  one  suffering  injury  therefrom,  because  it  is  com¬ 
mitted  willfully,  wickedly  and  maliciously,  and  in  pursuance  of 
a  conspiracy  to  do  the  injury  suffered?  Does  one  render 
himself  liable  in  damages  for  maliciously  and  wickedly  exercis¬ 
ing  his  right  or  denouncing  his  intention  of  so  doing,  if  there¬ 
by  he  injures  another?  .  .  . 

Plaintiff  appeals  with  confidence  to  the  legal  maxim :  There 
is  no  wrong  without  its  remedy.  Far  be  it  from  us  to  shake 
the  public  and  professional  confidence  in  this  venerable  maxim 
of  the  English  common  law.  Its  influence  has  long  been  and 
will  long  continue  most  wholesome  in  preventing  the  private 
redress  of  real  and  imaginary  wrongs.  But  as  it  is  a  legal 
maxim  it  must  be  taken  in  a  legal  sense.  So  taken  it  can 
obviously  mean  no  more  than  that  there  is  a  legal  remedy  for 
every  legal  wrong,  i.  e.  every  injury  suffered  as  the  conse¬ 
quence  of  an  unlawful  act  or  a  lawful  act  done  in  an  unlawful 
manner.  Neither  is  shown  here.  Defendants  have  merely 
warned  their  employees  not  to  trade  with  plaintiff;  if  they  do 
they  must  give  up  their  employment.  They  had  the  right  to 


IOO 


AMERICAN  COURTS  IN  LABOR  CASES 


discharge  them  on  this  ground ;  it  was  not  unlawful,  but  highly 
proper  therefore  to  give  them  warning  of  their  intention.  The 
manner  of  giving  the  warning  was  not  unlawful  or  even  cen¬ 
surable.  The  posted  notice  contained  no  word  of  slander, 
libel  or  reproach  upon  the  character  of  plaintiff ;  no  charge  or 
insinuation  that  he  was  dishonest  or  unfair  in  his  dealing. 
Omitting  any  attack  on  plaintiff’s  character  as  a  man  or  trader, 
defendants,  in  the  usual  manner,  and  in  a  few  harmless  words, 
told  its  employees  to  stop  trading  with  him  or  they  must  stop 
working  for  them.  The  common  law  does  not  forbid  such  an 
act,  nor  has  our  legislature  yet  endeavored  to  make  such  an 
act  unlawful  by  statute,  as  has  been  done  in  some  of  the 
States,  and  probably  in  England.  No  legal  wrong  has  been 
done;  therefore  there  is  no  legal  remedy.  For  the  moral 
wrong  of  the  act,  if  there  be  any,  defendants  may  be  called 
to  account  in  another  tribunal.  Courts  administering  the  civil 
law  cannot  punish  sin  or  wickedness  unless  it  be  committed 
in  violation  of  the  civil  law,  which  is  the  measure  of  their 
jurisdiction. 

Nor  will  the  maxim  “  sic  atere  tuo,  nt  alicnnm  non  lacdas  ” 
aid  the  plaintiff  in  his  contention.  As  commonly  translated, 
“  So  use  your  own  as  not  to  injure  another’s,”  it  is  doubtless 
an  orthodox  moral  precept;  and  in  the  law  too  it  finds  fre¬ 
quent  application  to  the  use  of  surface  and  running  water,  and 
indeed  generally  to  easements  and  servitudes.  But  strictly 
even  then  it  can  mean  only :  “  So  use  your  own  that  you  do 
no  legal  damage  to  another’s.”  Legal  damage,  actionable  in¬ 
jury,  results  only  from  an  unlawful  act.  This  maxim  also 
assumes  that  the  injury  results  from  an  unlawful  act,  and 
paraphrased  means  no  more  than :  “  Thou  shalt  not  interfere 
with  the  legal  rights  of  another  by  the  commission  of  an  un¬ 
lawful  act,”  or  “  Injury  from  an  unlawful  act  is  actionable.” 
This  affords  no  aid  in  this  case  in  determining  whether  the 
act  complained  of  is  actionable,  that  is,  unlawful.  It  amounts 
to  no  more  than  a  truism:  An  unlawful  act  is  unlawful.  This 
is  a  mere  begging  of  the  question ;  it  assumes  the  very  point 
in  controversy,  and  cannot  be  taken  as  a  ratio  decidendi. 


THE  BOYCOTT 


IOI 


A  majority  of  the  court  therefore  conclude  that  the  act  done, 
i.  e.,  the  publication  of  the  notice  that  the  company  would 
discharge  employees  who  traded  with  plaintiff,  was  not  an 
unlawful  threat  nor  an  unlawful  act;  was  not  a  libel;  and 
though  done  wickedly  and  maliciously,  and  in  pursuance  of  a 
wicked  design,  is  still  not  actionable,  because  it  was  not  an 
unlawful  act,  nor  an  act  done  in  an  unlawful  manner. 

i 

There  are  three  other  prominent  cases  that  take  a  favor¬ 
able  legal  view  of  the  boycott,  all  written  since  the  beginning 
of  the  present  century:  Marx  &  Haas  Jeans  Clothing  Co.  v. 
Watson,  Missouri,  1902;  Lindsay  &  Co.  v.  Montana  F.  of 
L.,  Montana,  1908;  Parkinson  Co.  v.  Building  Trades  Coun¬ 
cil,  California,  1908.  The  first  of  these  decisions  deals 
largely  with  printed  notices  of  boycott,  and  the  constitu¬ 
tional  right  of  free  speech.  The  state  constitution  declares 
that  “  No  law  shall  be  passed  impairing  the  freedom  of 
speech ;  that  every  person  shall  be  free  to  say,  write  or  pub¬ 
lish  whatever  he  will  on  any  subject,  being  responsible  for 
all  abuse  of  that  liberty.”  Concerning  this  declaration  the 
court  says: 

The  two  ideas — the  one  of  absolute  freedom  “  to  say,  write 
or  publish  whatever  he  will  on  any  subject,”  coupled  with  re¬ 
sponsibility  therefor,  and  the  other  idea  of  preventing  any  such 
free  speech,  free  writing,  or  free  publication — cannot  coexist. 
And  just  here  it  must  be  observed  that  the  right  of  free 
speech,  free  writing,  or  free  publication  was  not  created  by  the 
constitution,  which  recognizes  those  rights  as  now  existing, 
and  only  seeks  their  protection  and  perpetuation. 

The  same  right  is  also  implied  in  another  section  of  the 
constitution :  “  that  no  person  shall  be  deprived  of  life, 
liberty  or  property  without  due  process  of  law.”  Following 
this  citation  the  court  continues: 

In  other  words,  free  speech  is  an  inevitable  concomitant  and 


102 


AMERICAN  COURTS  IN  LABOR  CASES 


adjuvant  of  personal  liberty, — as  necessary  to  the  latter’s  exist¬ 
ence  as  vital  air  to  the  lungs,  or  locomotion  to  the  body.  .  .  . 
These  terms,  “  life,”  “  liberty,”  and  “  property,"  are  repre¬ 
sentative  terms,  and  cover  every  right  to  which  a  member  of 
a  body  politic  is  entitled  under  the  law.  Within  their  com¬ 
prehensive  scope  are  embraced  the  right  of  self-defense,  free¬ 
dom  of  speech,  religious  and  political  freedom,  exemption 
from  arbitrary  arrests,  the  right  to  buy  and  sell  as  others  may ; 
all  our  liberties, — personal,  civil,  and  political ;  in  short,  all 
that  makes  life  worth  living;  and  of  none  of  these  liberties 
can  any  one  be  deprived,  except  by  due  process  of  law. 

The  next  point  dealt  with  is  the  claim  that  the  injury 
done  is  irreparable  because  of  the  insolvency  of  those  by 
whom  it  is  inflicted.  This  point  has  often  been  accepted  as 
decisive  by  some  courts;  the  damage  cannot  be  recovered 
from  workingmen  because  they  have  no  property  which 
can  be  attached.  The  case  before  us  takes  a  different  view. 

It  is  obvious  that,  if  this  remedy  be  given  on  the  ground 
of  the  insolvency  of  the  defendant,  the  freedom  to  speak  and 
write,  which  is  secured  by  the  constitution  of  Missouri  to  all 
its  citizens,  will  be  enjoyed  by  a  man  able  to  respond  in  dam¬ 
ages  to  a  civil  action,  and  denied  to  one  who  has  no  property 
liable  to  an  execution  .  .  .  [The  Section]  makes  no  distinc¬ 
tion,  and  authorizes  no  difference  to  be  made  by  courts  or  legis¬ 
latures,  between  a  proceeding  set  on  foot  to  enjoin  the  pub¬ 
lication  of  a  libel,  and  one  to  enjoin  the  publication  of  any 
other  sort  or  nature,  however  injurious  it  may  be,  or  to  pro¬ 
hibit  the  use  of  free  speech  or  free  writing  on  any  subject 
whatever ;  because,  wherever  the  authority  of  injunction  begins, 
there  the  right  of  free  speech,  free  writing,  or  free  publica¬ 
tion  ends.  .  .  .  Nor  does  it  in  any  way  change  the  complexion 
of  this  case  by  reason  of  its  being  alleged  in  the  petition  “  that 
the  defendants,  and  each  of  them,  is  without  means,  and  has 
no  property,  over  and  above  the  exemption  allowed  by  law, 
wherefrom  the  plaintiff  might  secure  satisfaction  for  the  dam- 


THE  BOYCOTT 


103 


ages  resulting  to  it  from  the  acts  aforesaid.”  The  constitution 
is  no  respecter  of  persons.  The  impecunious  man  “  who 
hath  not  where  to  lay  his  head  ”  has  as  good  right  to  free 
speech,  etc.,  as  has  the  wealthiest  man  in  the  community.  The 
right  to  enjoin  in  the  former’s  case  is  precisely  the  same  as 
in  the  latter’s — no  greater  and  no  less.  .  .  .  The  authority  to 
enjoin  finds  no  better  harbor  in  the  empty  pocket  of  the  poor 
man  than  in  the  full  pocket  of  the  rich  man.  And  such  au¬ 
thority  to  enjoin  can  have  no  existence  in  circumstances  such 
as  the  present  case  presents,  if  the  constitution  is  to  be  obeyed. 
If  these  defendants  are  not  permitted  to  tell  the  story  of  their 
wrongs,  or,  if  you  please,  their  supposed  wrongs,  by  word  of 
mouth,  or  with  pen  or  print,  and  to  endeavor  to  persuade  oth¬ 
ers  to  aid  them  by  all  peaceable  means  in  securing  redress  of 
such  wrongs,  what  becomes  of  free  speech,  and  what  of  per¬ 
sonal  liberty?  The  fact  that  in  exercising  that  freedom  they 
thereby  do  plaintiff  an  actionable  injury  does  not  go  a  hair 
toward  a  diminution  of  their  right  of  free  speech,  etc.,  for 
the  exercise  of  which,  if  resulting  in  such  injury,  the  constitu¬ 
tion  makes  them  expressly  responsible.  But  such  responsibil¬ 
ity  is  utterly  incompatible  with  authority  in  a  court  of  equity 
to  prevent  such  responsibility  from  occurring. 

On  the  same  subject  of  freedom  of  speech,  Judge  Hallo¬ 
way  of  Montana  writes  (Lindsay  v.  Montana  F.  of  L.) 
after  reference  to  the  constitution, 

It  cannot  be  said  that  a  citizen  of  Montana  is  free  to  publish 
whatever  he  will  on  any  subject,  while  an  injunction  preventing 
him  from  publishing  a  particular  item  upon  a  particular  sub¬ 
ject  hangs  over  his  head  like  a  sword  of  Damocles,  ready  to 
fall  with  all  the  power  which  can  be  invoked  in  contempt  pro¬ 
ceedings,  if  he  does  the  very  thing  the  section  of  the  constitu¬ 
tion  says  he  may  do.  It  is  impossible  to  conceive  the  idea  that 
the  individual  has  an  absolute  right  to  publish  what  he  pleases, 
subject  to  the  restriction  mentioned,  and  at  the  same  time  to 
entertain  the  idea  that  a  court  may  prevent  him  from  doing  so. 
The  two  ideas  cannot  possibly  coexist. 


104 


AMERICAN  COURTS  IN  LABOR  CASES 


On  the  subject  of  financial  responsibility,  this  court  takes 
the  view  of  the  case  last  quoted. 

The  constitution  does  not  discriminate  among  men  according 
to  the  amount  of  their  possessions.  The  guaranty  of  this 
section  extends  as  fully  to  the  poorest  as  to  the  wealthiest 
citizen  of  the  state :  and,  though  an  abuse  of  the  liberty  so 
guaranteed  may  result  in  loss  for  which  there  cannot  be  any 
adequate  compensation,  the  framers  of  our  constitution  in  pre¬ 
paring  it,  and  the  people  in  adopting  it,  doubtless  concluded 
that  it  was  better  that  such  results  be  reached  in  isolated  cases, 
than  that  the  liberty  of  speech  be  subject  to  the  supervision 
of  a  censor.  To  declare  that  a  court  may  say  that  an  individ¬ 
ual  shall  not  publish  a  particular  item  is  to  say  that  the  court 
may  determine  in  advance  just  what  the  citizen  may  or  may 
not  speak  or  write  upon  a  given  subject — is,  in  fact,  to  say 
that  such  court  is  a  censor  of  speech  as  well  as  of  the  press. 

Judge  Taft,  in  his  opinion  in  Thomas  v.  Cincinnati  N.  O. 
&  T.  P.  Ry.  Co.,  treats  this  subject  of  freedom  of  speech  in 
a  different  manner.  In  this  case  the  boycott  had  been 
against  connecting  railroads.  The  injunction  had  already 
been  issued  and  the  case  was  one  of  contempt  for  viola¬ 
tion. 

Something  has  been  said  about  the  right  of  assembly  and 
free  speech  secured  by  the  constitution  of  Ohio.  It  would  be 
strange,  indeed,  if  that  right  could  be  used  to  sustain  the  carry¬ 
ing  out  of  such  an  unlawful  and  criminal  conspiracy  as  we 
have  seen  this  to  be.  It  never  has  been  supposed  to  protect 
one  from  prosecution  or  suits  for  slander,  or  for  any  of  the 
many  malicious  and  tortious  injuries  which  the  agency  of  the 
tongue  has  been  so  often  employed  to  inflict.  If  the  ob¬ 
struction  to  the  operation  of  the  road  by  the  receiver  was 
unlawful  and  malicious,  it  is  not  less  a  contempt  because  the 
instrument  which  he  used  to  effect  it  was  his  tongue,  rather 
than  his  hand. 


THE  BOYCOTT 


105 

Though  the  second  case,  the  Lindsay  case,  dealt  with  the 
topics  already  referred  to,  the  main  part  of  the  opinion  de¬ 
fended  the  boycotting  act  principally  on  other  grounds.  In 
establishing  the  boycott  the  unions  had  passed  resolutions 
to  that  effect  at  their  meetings  and  the  following  circular 
had  been  issued: 

All  laboring  men  and  those  in  sympathy  with  organized 
labor  are  requested  not  to  patronize  Lindsay  &  Co.  who  are 
engaged  in  the  wholesale  fruit  business,  also  distributers  for 
cigars  and  vegetables  of  all  kinds  in  Billings  and  vicinity,  as 
they  are  unfair.  We  urge  the  retail  merchants,  laboring  men, 
and  all  who  are  in  sympathy  with  organized  labor  to  place 
themselves  in  position  to  patronize  friendly  wholesalers.  We 
further  desire  to  call  attention  to  the  fact  that  Lindsay  & 
Co.  are  operating  peddling  wagons  throughout  this  city,  and 
we  ask  the  people  to  guard  against  patronizing  these  wagons. 
We  ask  this  for  your  own  protection  and  the  protection  of  or¬ 
ganized  labor. 

This  circular  had  the  effect  of  turning  trade  away  from  the 
boycotted  firm,  “  with  the  result  that  the  business  of  the 
company  in  Billings  was  practically  paralyzed  and  great 
financial  loss  resulted.”  An  injunction  had  been  granted  by 
the  lower  court  and  the  supreme  court  was  asked  to  dis¬ 
solve  it.  The  court  found  that  “  only  two  acts  of  any  con¬ 
sequence  are  shown  to  have  been  committed  by  the  defend¬ 
ants  :  ( 1 )  They  declared  Lindsay  &  Co.  unfair,  or,  in  the 
language  of  respondent,  boycotted  the  company;  and  (2) 
they  published  the  circular  set  forth  above,  that  is,  they 
caused  it  to  be  printed  and  circulated.”  The  court  asks 
itself  the  question,  What  is  a  boycott?  and  answers  by  ac¬ 
cepting  the  broader  definitions  that  have  already  been 
quoted.  It  then  proceeds  : 

But  what  is  there  unlawful  in  the  act  of  the  union  working- 


io6  AMERICAN  COURTS  IN  LABOR  CASES 

men  of  Billings  in  withdrawing  their  patronage  from  the  plain¬ 
tiff?  Certainly  it  cannot  be  said  that  Lindsay  &  Co.  had  a 
property  right  in  the  trade  of  any  particular  person.  In  this 
country  patronage  depends  upon  good  will,  and  we  do  not 
think  that  it  will  be  contended  by  any  one  that  it  was  wrong¬ 
ful  or  unlawful,  or  violated  any  right  of  the  plaintiff  company, 
for  any  particular  individual  in  Billings  to  withdraw  his 
patronage  from  Lindsay  &  Co.,  or  from  any  other  concern 
which  might  be  doing  business  with  that  company,  and  that, 
too,  without  regard  to  his  reason  for  doing  so.  .  .  .  If  the  act 
done  is  lawful,  the  combination  of  several  persons  to  commit 
it  does  not  render  it  unlawful.  In  other  words,  the  mere 
combination  of  action  is  not  an  element  which  gives  char¬ 
acter  to  the  act . 

We  hold,  then,  that  a  labor  organization  may  employ  the 
boycott  as  herein  defined  in  furtherance  of  the  objects  of  its 
existence.  If,  however,  the  means  by  which  it  enforces  the  boy¬ 
cott  are  illegal,  then  it  may  render  its  members  amenable  to  the 
processes  of  the  law,  but,  if  they  are  not,  the  courts  are  power¬ 
less  to  render  assistance  to  the  person  or  firm  boycotted,  even 
though  financial  loss  results  as  the  direct  consequence  of  the  boy¬ 
cott.  It  may  be  true  that,  speaking  generally,  no  one  has  the  right 
intentionally  to  do  an  act  for  the  purpose  of  injuring  another's 
business;  but  injury,  however,  in  its  legal  significance,  means 
damage  resulting  from  the  violation  of  a  legal  right,  and  it  is 
the  violation  of  the  legal  right  which  renders  an  act  wrongful 
in  the  eye  of  the  law  and  makes  it  actionable.  If,  then,  these 
defendants  and  their  associates  did  not  violate  any  legal  right 
of  the  plaintiff  in  withdrawing  their  patronage  from  the  com¬ 
pany,  or  in  agreeing  to  withdraw  their  patronage  from  any 
one  who  might  patronize  Lindsay  &  Co.,  they  cannot  be  en¬ 
joined  from  continuing  the  boycott  in  force,  so  long  as  the 
means  employed  to  make  the  boycott  effective  are  not  illegal. 
The  evidence  shows  that  the  only  means  used  in  this  instance 
was  the  publication  of  the  circular  in  question. 

This  brings  the  court  to  the  consideration  of  the  right  to 


THE  BOYCOTT 


107 


publish  the  circular.  That  an  individual  has  that  consti¬ 
tutional  right  is  made  clear  in  the  paragraph  that  has  al¬ 
ready  been  quoted.  That  this  individual  right  is  not  lost 
in  the  combination  is  asserted  at  the  conclusion  of  the  opin¬ 
ion.  “  If  any  one  of  these  individuals  could  publish  this 
circular,  they  may  with  equal  security  all  join  in  its  publi¬ 
cation.” 

The  last  of  these  cases,  the  Parkinson  case,  was  that  of 
a  boycott  organized  by  the  building  trades  against  the  em¬ 
ployers  of  these  laborers.  The  opinion  is  one  of  the  longest 
that  has  been  written  on  the  subject,  there  being  three  con¬ 
curring  opinions  and  one  dissenting.  The  notice  that  the 
plaintiff  was  “  unfair  ”  had  been  printed  and  circulated, 
with  the  effect  that  a  majority  of  contractors  had  ceased 
to  deal  with  him.  “  Can  it  be  said,”  asks  the  court,  “  that 
the  defendants  entered  into  a  conspiracy  for  the  purpose 
of  compelling  the  plaintiff,  by  coercion  and  intimidation,  to 
subject  its  business  to  their  control?  Can  it  be  said  that 
they  entered  into  a  conspiracy  at  all  ?  This  question  is  then 
answered  in  the  following  words : 

A  combination  there  certainly  was,  but  it  had  no  reference 
to  the  plaintiff  except  as  the  business  of  the  plaintiff  put  it 
into  the  general  class  (employers  of  labor)  who  would  neces¬ 
sarily  be  affected  by  the  enforcement  of  the  regulations  of 
the  unions.  Their  object  was  to  secure  higher  wages,  shorter 
hours,  and  more  favorable  conditions  generally  than  employers 
of  labor  might  be  willing  to  concede,  and  just  so  far  as  they 
might  be  successful  in  accomplishing  this  object  it  may  be  as¬ 
sumed  that  employers,  as  a  class,  the  plaintiff  included,  would 
incur  a  corresponding  loss.  But  assuming  all  this,  would  that 
constitute  the  combination  a  conspiracy?  ...  To  support  the 
conclusion  that  these  defendants  were  guilty  of  a  conspiracy, 
it  must  be  held  that  their  purpose  was  at  least  unlawful  if  not 
criminal,  or  their  purpose  being  lawful  that  they  proposed  to 
attain  it  by  the  employment  of  some  unlawful  means. 


I08  AMERICAN  COURTS  IN  LABOR  CASES 

Limiting  our  consideration  for  the  present  to  this  question 
of  conspiracy,  it  is  clear  that  the  avowed  object  of  these  or¬ 
ganizations — the  several  unions  of  working  men  and  the  coun¬ 
cil  in  which  they  were  combined — was  in  no  sense  unlawful, 
and  the  discussion  may  be  confined  to  the  question  whether 
the  means  proposed  for  its  attainment  were  unlawful,  a  ques¬ 
tion  as  to  which  there  is  a  wide  divergence  of  view  disclosed 
by  the  decisions  of  the  courts  of  different  jurisdictions,  and 
often  by  the  differing  opinions  of  judges  of  the  same  court. 

The  argument  then  takes  up  the  question  of  motive  in 
connection  with  the  acts  done  by  the  defendants.  The  in¬ 
terpretation  of  the  New  York  court  of  appeals  is  adopted, 
as  stated  in  the  National  Protective  Association  case,  and 
other  authorities,  and  the  conclusion  reached  is  that  the 
motive  is  not  material.  The  unions  had  adopted  the  rule 
that  its  members  should  not  work  for  employers  who 
handled  unfair  material.  The  printed  circular  was  simply 
the  notice  to  all  employers  that  this  rule  was  binding  and 
that  it  would  be  enforced  by  the  unions. 

The  contractors  were  working  in  harmony  with  the  unions 
(as  indeed  the  plaintiff  had  previously  done),  and  fair  dealing 
required  that  the  council,  representing  and  acting  for  the 
unions,  should  protect  such  contractors  from  any  loss  they 
might  incur  if  left  in  ignorance  of  the  action  it  had  taken.  If 
they  had  not  sent  the  notices  some  of  those  contractors  who  felt 
constrained  to  stop  dealing  with  plaintiff  when  informed  that 
it  had  been  declared  unfair  might  have  purchased  material 
which  they  could  not  have  used,  and  it  is  only  upon  the  as¬ 
sumption  that  such  purchases  would  have  been  made  that  the 
plaintiff  can  base  a  claim  that  it  was  damaged  by  the  notices. 
But  can  plaintiff  make  such  a  claim  as  a  ground  for  equitable 
relief?  It  seems  very  clear  that  it  cannot;  for,  with  full 
knowledge  that  it  had  been  declared  unfair  and  of  all  the  con¬ 
sequences  flowing  from  that  declaration,  it  would  not  have 
been  justified  in  selling  material  to  a  contractor  employing 


THE  BOYCOTT 


109 


union  men  without  disclosing  a  fact  so  material  to  his  freedom 
of  contract.  And,  if  good  faith  and  fair  dealing  imposed  an 
equal  obligation  upon  the  plaintiff  and  the  council  to  inform 
the  contractors  of  what  the  plaintiff  knew,  it  is  difficult  to  see 
what  right  of  plaintiff  was  infringed  by  the  sending  of  the 
notices.  Their  only  effect  was  to  enable  the  contractors  and 
plaintiff  to  conduct  their  future  dealings  on  equal  terms.  .  .  . 

The  fact  that  the  business  agent  of  the  council  in  the  course 
of  the  dispute  .  .  .  told  Mr.  Parkinson  that  they  would  drive 
him  out  of  business  if  he  refused  to  observe  their  rules  is  ma¬ 
terial  only  in  so  far  as  it  is  an  item  of  evidence  tending  to 
show  that  the  course  pursued  by  the  council  was  dictated  by  a 
malicious  purpose  to  injure  the  plaintiff,  and  not  by  a  desire  to 
benefit  its  members.  .  .  .  Conceding  that  it  might  have  war¬ 
ranted  the  superior  court  in  concluding  that  the  motives  of 
defendants  were  tinctured  with  malice,  it  cannot  be  denied 
that  all  the  acts  of  the  council  and  its  affiliated  unions  were 
lawful,  and  that  they  were  adapted  to  the  promotion  of  the 
plans  devised  by  them  for  bettering  the  condition  of  the  mem¬ 
bers.  Being  so  adapted,  and  being  lawful  in  themselves,  they 
could  not  be  rendered  actionable  by  the  mere  fact  that  some 
feeling  of  animosity  had  been  engendered  in  the  course  of 
the  controversy  between  the  parties. 

One  of  the  concurring  opinions  was  written  by  Judge 
Sloss.  While  agreeing  with  the  judgment  of  the  court  he 
was  not  prepared  to  assent  to  everything  that  was  said  in 
the  main  opinion. 

The  opinion  of  the  Chief  Justice  appears  to  proceed  upon 
the  theory  that,  since  the  defendants  had  bound  themselves 
to  act  in  a  certain  way  in  the  event  of  a  controversy  of  this 
kind,  it  was  not  only  proper,  but  laudable,  for  them  to  notify 
contractors  of  their  intended  action  and  of  the  consequences 
which  would  follow  to  contractors  who  should  continue  to  deal 
with  the  plaintiff.  More  than  this,  that  it  was  in  some  way 
incumbent  upon  plaintiff  to  notify  contractors  dealing  with 


I IO 


AMERICAN  COURTS  IN  LABOR  CASES 


him  that  a  continuance  of  their  patronage  would  be  likely  to 
result  in  loss  to  them.  I  cannot  agree  to  the  proposition  that 
the  rights  of  the  parties  are  in  any  way  affected  by  such 
considerations.  If  the  defendants’  course  of  conduct  amounted 
to  an  unlawful  interference  with  plaintiff’s  rights,  it  was  not 
made  lawful  by  the  fact  that  the  defendants  had  decided,  in 
advance,  to  act  in  this  way  whenever  an  occasion  should 
present  itself. 

Their  action,  he  further  argued,  was  not  unlawful,  since 
the  defendants  had  a  right  to  cease  to  work  and  the  reason 
for  their  ceasing  was  wholly  immaterial. 

It  is  said  [the  defendants]  are  bringing  to  bear  upon  the 
Parkinson  Company,  with  which  they  have  a  controversy,  the 
pressure  of  loss  inflicted  by  third  persons,  not  connected  with 
the  main  dispute,  and  are,  by  holding  over  these  third  persons 
the  risk  of  financial  loss,  compelling  them  against  their  will  to 
inflict  upon  Parkinson  the  damage  resulting  from  a  cessation 
of  their  patronage.  This  is  the  argument  commonly  advanced 
to  establish  the  illegality  of  what  has  been  called,  in  much  of 
the  recent  discussion  of  the  subject,  a  “  secondary,”  rather 
than  a  “  primary  ”  boycott.  I  do  not  see  that  we  are  helped 
to  a  solution  of  the  question  of  the  illegality  of  the  defend¬ 
ants’  acts  by  looking  into  the  “  motive  ”  or  “  intent  ”  with 
which  they  acted.  .  .  .  The  defendants  were  seeking  in  all 
they  are  shown  to  have  done  to  secure  employment  by  the 
plaintiff  for  themselves,  to  the  exclusion  of  those  not  asso¬ 
ciated  with  them,  and  to  secure  that  employment  upon  terms 
deemed  satisfactory  or  advantageous  to  them.  That  is  the 
effort  of  every  dealer  in  goods.  It  is  the  struggle  of  com¬ 
petition,  and  is  no  more  to  be  frowned  upon  where  the  sub¬ 
ject  of  trade  is  labor  than  where  it  is  a  specific  commodity. 
The  uniting  or  combining  of  a  number  of  persons  to  accom¬ 
plish  a  lawful  object  by  lawful  means  will  not  per  se  render 
the  conduct  of  the  many  any  more  unlawful  than  would  be  the 
same  conduct  on  the  part  of  any  one  of  them.  .  .  . 


THE  BOYCOTT 


III 


The  injunction,  then,  must  rest  upon  the  principle  that  it  is 
unlawful,  in  an  effort  to  compel  A.  to  yield  a  legitimate  bene¬ 
fit  to  B.,  for  B.  to  demand  that  C.  withdraw  his  patronage 
from  A.  under  the  penalty  of  losing  B.’s  services  or  patronage 
to  which  he  has  no  contract  right.  That  there  are  many  cases 
sustaining  the  affirmative  of  this  proposition  is  true.  So  are 
there  many  to  the  contrary. 

Upon  a  consideration  of  the  authorities  I  think  the  sounder 
rule  is  that  one  who  is  under  no  contract  relation  to  another 
may  freely  and  without  question  withdraw  from  business  re¬ 
lations  with  that  other.  This  includes  the  right  to  cease  to 
deal,  not  only  with  one  person  but  with  others ;  not  only  with 
the  individual  who  may  be  pursuing  a  course  deemed  detri¬ 
mental  to  another  who  opposes  it,  but  with  all  who  by  their 
patronage  aid  in  the  maintenance  of  the  objectionable  policies. 

The  terms  “  intimidation  ”  and  “  coercion/’  so  frequently 
used  in  the  discussion  of  this  question,  seem  to  me  to  have 
no  application  to  such  acts  as  were  here  committed.  One  can¬ 
not  be  said  to  be  “  intimidated  ”  or  “  coerced  ”  in  the  sense  of 
unlawful  compulsion  by  being  induced  to  forego  business  re¬ 
lations  with  A.,  rather  than  lose  the  benefit  of  more  profitable 
relations  with  B.  It  is  equally  beside  the  question  to  speak 
of  “  threats  ”  where  that  which  is  threatened  is  only  what  the 
party  has  a  legal  right  to  do.  It  may  be  that  the  combination 
of  great  numbers  of  men,  as  of  great  amounts  of  capital,  has 
placed  in  the  hands  of  a  few  persons  an  immense  power,  and 
one  which,  in  the  interest  of  the  general  welfare,  ought  to  be 
limited  and  controlled.  But  if  there  be,  in  such  combina¬ 
tions,  evils  which  should  be  redressed,  the  remedy  is  to  be 
sought,  as  to  some  extent  it  has  been  sought,  by  legislation. 
If  the  conditions  require  new  laws,  those  laws  should  be  made 
by  the  lawmaking  power,  not  by  the  courts. 

From  the  reading  of  the  many  cases  that  deal  with  var¬ 
ious  phases  of  the  boycott  it  would  seem  clear  that  the  legal 
attitude  toward  it  is  experiencing  much  the  same  change 
as  has  occurred  with  the  strike.  Conspiracy  was  the  deter- 


II 2 


AMERICAN  COURTS  IN  LABOR  CASES 


mining  factor  in  early  strikes.  Though  it  has  been  recog¬ 
nized  in  our  courts  from  the  beginning  that  a  man  might 
stop  work  whenever  he  thought  that  by  doing  so  he  could 
improve  his  condition,  yet  to  act  in  combination  with  others 
was  conspiracy.  Moreover  to  quit  work  in  such  a  way  as 
to  harm  the  employer  was  readily  interpreted  as  having  for 
its  purpose  the  injury  of  the  employer,  and  that  meant  a 
malicious  motive.  Combination  and  motive  were  the  two 
facts  of  importance  where  early  courts  inflicted  punishment 
upon  strikers.  But  conspiracy  has  been  modified  in  its  appli¬ 
cation  to  strikers,  and  some  courts  have  held  that  the  motive 
for  stopping  work  is  wholly  immaterial.  The  parallel  in  the 
case  of  the  boycott  is  evident,  although  the  development 
in  case  of  the  strike  is  farther  advanced.  No  court  would 
deny  to  a  laborer  the  general  right  to  spend  his  money  or 
refuse  to  spend  it,  as  he  chose,  as  any  other  individual  may. 
But  a  combination  to  spend  or  to  refuse  to  spend  may  be 
conspiracy,  if  the  motive  is  to  do  damage.  In  but  few  cases 
has  it  been  held  that  the  motive  is  not  material. 

By  bringing  the  two  lines  of  reasoning  together,  we  may 
see  the  fundamental  difference  between  them.  Illegality,  as 
a  conclusion,  is  reached  very  logically  from  the  principles 
adopted.  It  is  lawful  for  one  to  enter  into  such  business 
relations  as  are  found  mutually  agreeable  to  the  parties 
concerned.  The  purpose  of  such  relations  is  mutual  benefit. 
Freedom  to  enter  into  them  implies  likewise  freedom  to  re¬ 
frain.  Refraining  is  assumed  to  be  primarily  for  the  bene¬ 
fit  of  the  one  who  refuses  the  relations,  and  the  fact  that 
another  may  be  deprived  of  an  advantage  that  would  have 
resulted  from  such  relations  can  not  be  regarded  as  a  loss 
to  him.  But  when  many  combine  and  by  a  concerted  action 
refuse  business  relations,  the  case  is  not  parallel  with  indi¬ 
vidual  action.  Combination  colors  the  act.  The  outcome 
is  that  the  superior  right  of  the  combination  forces  an 


THE  BOYCOTT 


113 

agreement  that  would  not  otherwise  have  been  made.  This 
is  coercion  and  therefore  unlawful.  The  lawful  act  entered 
into  by  many  and  sought  to  be  accomplished  by  unlawful 
means  brings  it  within  the  meaning  of  conspiracy.  The 
very  name  then  serves  to  characterize  the  act;  it  is  unlawful. 

Legality,  on  the  other  hand,  as  a  conclusion,  is  also 
reached  by  steps  that  are  logical.  The  starting  point 
is  the  same  individual  right  to  enter  or  to  refrain  from  en¬ 
tering  into  business  relations.  That  right  is  fundamental, 
however,  and  is  not  affected  by  the  fact  that  others  join  in 
doing  the  same.  If  it  is  to  the  interest  of  one  to  refrain, 
it  may  be  to  the  interest  of  a  hundred  or  a  thousand  simi¬ 
larly  placed  to  refrain.  If  they  recognize  this  interest  by 
consultation,  come  to  the  conclusion  by  agreement  and  unite 
in  common  action,  no  one  of  the  group  has  done  what  as 
an  individual  he  has  not  a  legal  right  to  do.  Moreover,  if 
their  interests  lie  to  them  in  refraining  from  assuming  the 
business  relation,  they  are  simply  furthering  their  own  wel¬ 
fare,  and  this  is,  of  course,  a  worthy  motive.  That  they  re¬ 
frain  from  the  relation  cannot  be  interpreted  as  a  loss  to 
the  other  party  to  the  relation.  It  is  true  that  such  relations 
are  entered  into  for  mutual  gain.  If  one  desires  the  rela¬ 
tion  for  his  gain  and  the  other  refrains  because  he  does  not 
see  it  to  his  interest  to  assume  the  relation,  it  does  not 
mean  that  there  is  a  loss.  It  is  true  that  an  opportunity  for 
gain  can  not  be  taken  advantage  of,  but  that  is  not  a  loss. 
One  cannot  be  said  to  have  suffered  a  loss  of  a  thousand 
dollars  because  he  has  never  found  a  thousand  dollars. 

But  further,  so  long  as  buying  and  selling  are  but  two 
views  of  the  same  act,  an  act  of  voluntary  business  relation, 
and  so  long  as  the  relation  must  be  one  of  mutual  agree¬ 
ment,  it  is  difficult  to  see  where  the  property  right  enters  in. 
One’s  business  is  of  course  his  property.  So  in  a  sense  may 


H4 


AMERICAN  COURTS  IN  LABOR  CASES 


one’s  labor  be  called  his  property.1  When  one  offers  for 
sale  and  another  refuses  to  buy,  there  is  simply  a  refusal 
to  exchange  property  for  property.  When  one  points  out 
to  another  or  to  many  others  that  it  is  to  his  interest  not  to 
buy,  there  is  again  simply  the  refusal  to  exchange.  When 
many  meet  and  decide  together  or  agree  not  to  buy  there  is 
concerted  refusal  to  exchange.  To  interpret  this  as  a  mali¬ 
cious  destruction  of  one’s  business,  which  is  property,  and 
even  to  interpret  it  as  an  infringement  of  a  property  right 
is  a  manifestation  of  solicitude  for  one  form  of  property 
(a  business)  at  the  expense  of  another  form  (labor)  that 
it  is  not  easy  to  justify.  The  man  who  goes  into  business 
assumes  the  risk  of  failure  together  with  the  chances  of  suc¬ 
cess.  If  failure  comes,  it  is  his  risk,  so  long  as  it  comes 
from  the  refusal  of  others  to  buy,  and  is  his  loss,  but  it  is 
not  a  loss  for  which  those  who  refuse  to  be  purchasers  can 
be  held  responsible.  Clearly  the  essential  difference  is  in 
combination  and  in  motive.  But  it  is  at  just  these  two 
points  that  the  opinions  show  a  tendency  toward  a  change 
of  view.  Combination  and  conspiracy  are  not  nearly  so 
synonymous  as  they  have  been.  Motive  is  not  so  material 
as  it  has  been.  Plenty  of  obiter  uterances  may  be  found  to 
show  this  change.  With  the  further  modification  of  these 
older  views  will  come  a  further  modification  of  the  court’s 
attitude  toward  the  boycott. 

Read  in  the  light  of  modern  conditions  the  changing  at¬ 
titude  seems  necessary.  The  courts  themselves  are  begin¬ 
ning  to  recognize,  though  somewhat  tardily,  that  combina¬ 
tion  is  a  fact  of  modern  industry  that  may  be  controlled  but 
not  eliminated.  Combinations  are  for  the  purpose  of  doing 
things,  and  they  cannot  be  expected  to  be  inactive.  These 

1  The  author  objects  to  speaking  of  “  labor  ”  as  “  property.”  The  ex¬ 
pression  is  so  common,  however,  among  judges  in  their  opinions  that 
it  is  used  here  as  a  brief  formula  for  setting  forth  the  contrast  desired. 


THE  BOYCOTT 


115 

combinations  exist  in  the  fields  of  both  capital  and  labor. 
The  recognition  of  this  fact  however  is  but  the  beginning 
not  the  end  of  the  difficulty.  What  may  the  combinations 
do  within  the  law,  is  a  question  the  answer  to  which  must 
be  worked  out  by  the  slow  process  of  development. 

“  The  times  in  which  we  live  seem  to  require  a  more  ex¬ 
tended  examination  of  the  subject,”  wrote  Judge  Carpenter 
of  Connecticut  in  1887.  “We  are  not  unmindful  of  the 
difficulty  often  presented  to  the  courts  to  determine  what 
constitutes  an  unlawful  boycott,”  added  Chief  Justice  Grant 
of  Michigan  in  1898. 

The  elaborate  boycotts  that  have  been  organized,  and  the 
heartless  manner  in  which  they  have  been  conducted,  after 
all,  leave  much  ground  for  the  opinion  that  they  should  be 
controlled.  Some  of  them,  beyond  a  doubt,  adopt  means 
that  are  clearly  unlawful.  Not  even  in  the  most  favorable 
opinions  of  courts  is  there  basis  for  hope  that  these  means 
will  be  permitted.  When,  however,  the  labor  organization 
leaders  themselves  come  to  realize  this,  and  learn  to  keep 
the  boycott  within  reasonable  limits,  even  to  lose  a  fight  if 
necessary  rather  than  to  go  to  extremes,  there  is  basis  for 
belief  that  boycotts,  without  the  tyrannical  domineering 
that  sometimes  accompanies  them,  may  in  time  be  regarded 
by  the  courts  as  legal. 

The  tendency  toward  a  recognition  of  the  boycott  as  legal 
follows  from  the  view  accepted  by  some  of  the  courts  in  re¬ 
gard  to  the  strike.  The  right  to  stop  work  is  not  affected  by 
the  motive  or  intent.  Chief  Justice  Beatty,  in  his  opinion 
in  the  Parkinson  case,  very  clearly  applies  this  principle 
to  the  boycott.  Referring  to  the  Cumming  case  (N.  Y. 
court  of  appeals)  he  points  out  that  in  Justice  Parker’s 
view,  supported  by  three  others  of  that  court,  every  man 
may  stop  work  with  or  without  reason  (where  there  is  no 
contract  relation  involved)  and  whatever  his  reason  may 


AMERICAN  COURTS  IN  LABOR  CASES 


1 16 

be  he  is  not  obliged  to  give  it  as  a  justification  of  his  quitting 
unless  he  elects  to  do  so.  This  proposition,  asserts  Chief 
Justice  Beatty,  is  found  also  in  other  cases.  In  a  case  de¬ 
cided  by  his  own  court  it  took:  the  form,  “  an  act  which  does 
not  amount  to  a  legal  injury  cannot  be  actionable  because 
it  is  done  with  a  bad  intent.”  In  the  English  case  it  was 
stated  (Allen  v.  Flood),  “An  act  lawful  in  itself  is  not 
converted  by  a  malicious  or  bad  motive  into  an  unlawful 
act  so  as  to  make  the  doer  of  the  act  liable  to  a  civil  action.” 
The  Chief  Justice  then  concludes: 

The  rule  of  law,  therefore,  as  firmly  established  in  Eng¬ 
land,  in  this  state,  and  in  most  of  the  United  States,  supports 
the  conclusion  of  Chief  Justice  Parker  and  the  majority  of  the 
court  of  appeals  of  New  York  ...  so  far  as  it  rests  upon  the 
doctrine,  “  that  an  act  lawful  in  itself  is  not  converted  by  a 
malicious  or  bad  motive  into  an  unlawful  act  so  as  to  make 
the  doer  of  the  act  liable  to  a  civil  action.” 


CHAPTER  VI 


The  Picket 

It  would  hardly  be  possible  for  workingmen  to  carry 
through  a  strike  without  picketing.  Picketing  has  thus  often 
been  passed  upon  by  the  courts.  While  coming  in  incident¬ 
ally  as  a  rule,  it  has  also  been  brought  forward  as  the  main 
question  in  some  instances.  Even  when  the  right  to  strike 
is  conceded,  it  is  not  clear  what  may  be  done  by  the  strikers. 
Picketing  is  usually  considered  as  part  of  the  question: 
What  may  strikers  do? 

The  definition  in  Black’s  Law  Dictionary  is  generally  ac¬ 
cepted  by  the  courts. 

Picketing,  by  members  of  a  trade  union  on  strike,  consists  in 
posting  members  at  all  the  approaches  to  the  works  struck 
against,  for  the  purpose  of  observing  and  reporting  the  work¬ 
men  going  to  or  coming  from  the  works,  and  of  using  such 
influence  as  may  be  in  their  power  to  prevent  the  workmen 
from  accepting  work  there. 

I 

Chief  Justice  Grant,  of  Michigan  (Beck  v.  Railway  Team¬ 
sters),  prefers  the  more  drastic  definition  of  the  Century 
Dictionary :  “  A  body  of  men  belonging  to  a  trades  union 
sent  to  watch  and  annoy  men  working  in  a  shop  not  belong¬ 
ing  to  the  union,  or  against  which  a  strike  is  in  progress.” 
“  The  word  originally  had  no  such  meaning,”  he  adds. 
“  This  definition  is  the  result  of  what  has  been  done  under 
it,  and  the  common  application  that  has  been  made  of  it.” 
Vice  Chancellor  Reed,  of  New  Jersey  (Cumberland  Glass 


Il8  AMERICAN  COURTS  IN  LABOR  CASES 

Co.  v.  Glass  Bottle  Blowers),  uses  the  word  in  the  sense  of 
“  relays  of  guards  in  front  of  a  factory  or  the  place  of 
business  of  the  employer,  for  the  purpose  of  watching  who 
should  enter  or  leave  the  same.”  District  Judge  Tayler 
(Pope  Motor  Car  Co.  v.  Keegan),  adopts  as  its  meaning  a 

detachment  of  men  in  suitable  places  for  the  purpose  of  com¬ 
ing  into  personal  relations  with  the  new  workmen,  in  order, 
if  possible,  to  induce  them,  by  means  of  peaceful  argument, 
to  leave  the  places  which  they  have  taken,  for  such  natural 
and  proper  reasons  as  may  appeal  to  men  in  such  circum¬ 
stances. 

From  these  definitions  it  will  appear  that  there  is  very 
general  agreement  as  to  the  meaning  of  the  term,  and  yet 
one  very  important  difference  emerges  as  soon  as  a  further 
analysis  is  made.  The  border  line  between  picketing  and 
intimidation  is  not  easy  to  establish.  It  is  difficult  to  classify 
the  opinions  with  reference  to  legality  and  illegality,  for 
all  of  them  are  at  some  pains  to  emphasize  that,  whatever 
may  be  their  decision  in  the  case  at  court,  picketing  may 
easily  become  intimidation. 

That  the  picket  may  be  legal,  or  that  picketing  is  in  itself 
legal,  is  expressed  in  several  opinions.  Judge  Holmes, 
speaking  from  the  Massachusetts  bench,  in  his  dissenting 
opinion  (Vegelahn  v.  Guntner),  says: 

It  appears  to  me  that  the  opinion  of  the  majority  turns  in 
part  on  the  assumption  that  the  patrol  necessarily  carries  with 
it  a  threat  of  bodily  harm.  That  assumption  I  think  unwar¬ 
ranted.  ...  It  cannot  be  said,  I  think,  that  two  men,  walking 
together  up  and  down  a  sidewalk,  and  speaking  to  those  who 
enter  a  certain  shop,  do  necessarily  and  always  thereby  convey 
a  threat  of  force.  I  do  not  think  it  possible  to  discriminate, 
and  to  say  that  two  workmen,  or  even  two  representatives  of 
an  organization  of  workmen,  do.  ...  I  may  add  that  I  think 


THE  PICKET 


119 

the  more  intelligent  workingmen  believe  as  fully  as  I  do  that 
they  no  more  can  be  permitted  to  usurp  the  state’s  prerogative 
of  force  than  can  their  opponents  in  their  controversies.  [Al¬ 
though  the  doing  of  damage  by  combined  persuasion  is  ac¬ 
tionable]  nevertheless,  in  numberless  instances  the  law  war¬ 
rants  the  intentional  infliction  of  temporal  damage,  because 
it  regards  it  as  justified.  It  is  on  the  question  of  what  shall 
amount  to  a  justification,  and  more  especially  on  the  nature 
of  the  considerations  which  really  determine  or  ought  to  de¬ 
termine  the  answer  to  that  question,  that  judicial  reasoning 
seems  to  me  often  to  be  inadequate.  .  .  . 

The  policy  of  allowing  free  competition  justifies  the  inten¬ 
tional  inflicting  of  temporal  damage,  including  the  damage 
of  interference  with  a  man’s  business  by  some  means,  when 
the  damage  is  done,  not  for  its  own  sake,  but  as  an  instru¬ 
mentality  in  reaching  the  end  of  victory  in  the  battle  of  trade. 
In  such  a  case  it  cannot  matter  whether  the  plaintiff  is  the 
only  rival  of  the  defendant,  and  so  is  aimed  at  specially,  or 
is  one  of  a  class  all  of  whom  are  hit.  The  only  debatable 
ground  is  the  nature  of  the  means  by  which  such  damage  may 
be  inflicted.  We  all  agree  that  it  cannot  be  done  by  force  or 
threats  of  force.  We  all  agree,  I  presume,  that  it  may  be 
done  by  persuasion  to  leave  a  rival’s  shop,  and  come  to  the 
defendant’s.  It  may  be  done  by  the  refusal  or  withdrawal  of 
various  pecuniary  advantages,  which,  apart  from  this  con¬ 
sequence,  are  within  the  defendant’s  lawful  control.  It  may 
be  done  by  the  withdrawal  of,  or  threat  to  withdraw,  such 
advantages  from  third  persons  who  have  a  right  to  deal  or 
not  to  deal  with  the  plaintiff,  as  a  means  of  inducing  them  not 
to  deal  witn  him  either  as  customers  or  servants. 

Several  other  opinions  express  views  not  altogether  un¬ 
favorable  to  the  picket.  Among  these  may  be  noted  the 
following  expressed  by  Vice  Chancellor  Reed,  of  New 
Jersey : 

I  cannot  say  that  the  law  is  so  settled  that  a  preliminary  in- 


120 


AMERICAN  COURTS  IN  LABOR  CASES 


junction  can  go  upon  the  notion  that  picketing,  without  some 
other  act  evidential  of  coercion,  is  in  itself  evidence  of  in¬ 
timidation.  The  decision  ot  the  question,  I  think,  must  de¬ 
pend  upon  the  circumstances  surrounding  each  case.  There 
must  be  taken  into  account  the  size  of  the  guard,  the  extent 
of  their  occupation  of  the  street,  and  what  they  say  and  do. 
Taking  every  circumstance  into  account,  if  it  appears  that  the 
purpose  of  the  picketing  is  to  interfere  with  those  passing  into 
or  out  of  the  works,  or  those  wishing  to  pass  into  the  works, 
by  other  than  persuasive  means,  it  is  illegal.  If  the  design 
of  the  picketing  is  to  see  who  can  be  the  subject  of  per¬ 
suasive  inducements,  such  picketing  is  legal.  (Cumberland 
Glass  Co.  v.  Glass  Bottle  Blowers.) 

Vice  Chancellor  Stevenson,  of  the  same  court,  writes : 

The  counsel  for  complainant  practically  confined  his  argu¬ 
ment  to  the  proposition  that  a  preliminary  injunction  should 
go  in  the  case  to  restrain  picketing,  without  reference  to  the 
object  of  the  picketing  or  its  effect.  If  this  view  is  correct, 
it  follows  that  workmen  maintaining  a  strike  have  no  right  to 
station  pickets  merely  for  the  purpose  of  giving  them  such 
information  in  regard  to  their  late  employers’  operations  as 
may  be  discovered  by  ordinary  observation.  It  seems  to  me 
that  this  claim  is  not  well  founded ;  that  it  is  contrary  to  the 
great  weight  of  reason  as  well  as  authority. 

Picketing  may  be  lawful ;  picketing  may  be  unlawful. 
Whether  picketing  is  lawful  or  unlawful  depends  wholly  upon 
the  purpose  with  which  it  is  carried  on,  or  perhaps,  it  would 
be  more  accurate  to  say,  the  effect  which  is  produced  by  it. 
If  the  purpose  and  effect  are  to  intimidate,  to  interfere  with 
the  liberty  of  workmen  in  seeking  employment,  to  interfere 
with  what  in  another  case  I  called  the  employer’s  right  to 
have  labor  flow  freely  to  him  so  that  a  reasonably  courageous 
person  would  be  restrained  from  offering  his  labor  to  such 
employer,  then  picketing  is  unlawful,  and,  where  the  other 
necessary  conditions  for  the  interference  of  a  court  of  equity 
exist,  will  be  prohibited  by  an  injunction. 


THE  PICKET 


121 


If,  however,  the  picketing  is  carried  on  for  the  mere  pur¬ 
pose  of  obtaining  information,  or  for  the  purpose  of  convey¬ 
ing  information  to  persons  seeking  or  willing  to  receive  the 
same,  or  even,  in  some  cases,  for  the  purpose  of  bringing 
orderly  and  peaceable  persuasions  to  bear  upon  the  minds  of 
men  who  desire  to  listen  to  the  same,  the  object  of  such  per¬ 
suasions  not  including  in  any  way  the  disruption  of  an  exist¬ 
ing  contract  for  labor,  then  there  may  be  no  unlawful  element 
in  the  picketing,  and  carrying  it  on  may  found  no  action  even 
at  law,  and  certainly  may  not  call  for  any  interference  on  the 
part  of  a  court  of  equity.  (Fletcher  Co.  v.  International  Ma¬ 
chinists.) 

District  Judge  Tayler,  writing  from  the  circuit  court,  ex¬ 
presses  himself  at  some  length : 

Much  has  been  said  by  the  courts,  and  by  others,  as  to  the 
peace-disturbing  quality  of  picketing,  and  it  is  claimed  by 
many  that  picketing,  though  intended  to  be  peaceable,  and  en¬ 
gaged  in  by  no  more  than  two  or  three  at  each  station,  nec¬ 
essarily  results  in  violence  or  intimidation,  and  is  itself  in¬ 
timidating.  A  learned  judge,  in  1867,  said  that,  in  his  opinion, 
“  it  was  impossible  to  have  an  effectual  system  of  picketing 
without  being  guilty  of  that  alarm,  intimidation,  and  obstruc¬ 
tion  which  is  a  breach  of  the  law.”  Possibly  that  may  still 
be  true,  but  it  cannot  now  be  said  without  qualification,  as  it 
then  could.  In  knowledge  of  their  rights,  in  law-abiding  spirit, 
in  general  intelligence,  there  has  been  a  great  advance,  espec¬ 
ially  among  skilled  artisans.  In  this  country,  at  least,  they 
make  up  a  large  part  of  our  intelligent  and  law-abiding  citi¬ 
zens. 

If  we  can  apprehend  anything,  we  must  observe  that  a 
better  practice  is  prevailing,  due,  doubtless,  to  the  increasing 
intelligence  and  good  sense  of  those  involved,  and  also  to  the 
fact  that  courts  have  come  to  be  recognized  as  ready  to  pro¬ 
tect  persons  in  their  rights,  and  to  punish  those  who  unlaw¬ 
fully  interfere  with  them.  Undoubtedly  violence  and  intimi- 


122 


AMERICAN  COURTS  IN  LABOR  CASES 


dation  have,  to  some  extent,  been  associated  with  picketing  in 
this  case;  not  always,  though  perhaps  generally,  at  the  hands 
of  the  strikers  themselves.  The  idle,  the  dissolute,  and  the 
lawless  are  likely  to  take  advantage  of  such  a  situation  as  this 
to  commit  unlawful  acts,  and  the  state  of  mind  into  which 
striking  mechanics  are  likely  to  come,  in  such  a  case  as  we 
have  here,  is  more  or  less  likely  either  to  make  them  indiffer¬ 
ent  to  these  acts  when  committed  by  others,  or,  in  some  in¬ 
stances,  to  encourage  them.  Nevertheless,  I  cannot  believe 
that,  under  proper  circumstances,  and  with  such  a  sense  of 
self-restraint  as  men  can  exercise,  picketing  may  not  be 
properly  conducted.  (Pope  Co.  v.  Keegan. ) 

At  this  point  the  opinion  includes  a  quotation  concerning 
which  it  adds:  “  With  the  rule  laid  down  in  this  case  I  am 
in  full  accord.”  The  quotation  is  from  Judge  Hadley  of 
Indiana  and  reads : 

So,  in  a  contest  between  capital  and  labor,  on  the  one  hand 
to  secure  higher  wages,  and  on  the  other  to  resist  it,  argument 
and  persuasion  to  win  support  and  co-operation  from  others 
are  proper  to  either  side,  provided  they  are  of  a  character  to 
leave  the  persons  solicited  feeling  at  liberty  to  comply  or  not, 
as  they  please.  Likewise,  a  union  may  appoint  pickets  or  a 
committee  to  visit  the  vicinity  of  factories  for  the  purpose  of 
taking  note  of  the  persons  employed,  and  to  secure,  if  it  can 
he  done  by  lawful  means,  the  names  and  places  of  residence 
for  the  purpose  of  peaceful  visitation.  (Karges  Furniture  Co. 
v.  Woodworkers  Union.) 

Presiding  Justice  Evans,  of  Georgia,  in  an  opinion  not 
at  all  favorable  to  the  picket,  as  it  was  shown  to  have  been 
used  in  the  case  before  him,  admits  that 

the  law  does  not  forbid  employees  who  have  quit  their  em¬ 
ployer  from  using  legitimate  argument  to  induce  others  to  re¬ 
frain  from  taking  their  places.  The  current  of  authority  is 
that  a  court  of  equity  will  not  enjoin  employees  who  have  quit 


THE  PICKET 


123 


the  service  of  their  employer  from  attempting  to  persuade,  by 
proper  argument,  others  from  taking  their  places,  so  long  as 
they  do  not  resort  to  intimidation  or  obstruct  the  public  thor¬ 
oughfares.  ...  As  we  have  pointed  out,  it  was  not  unlawful 
for  the  strikers  to  use  legitimate  argument  and  moral  suasion 
in  presenting  their  case  to  those  who  offered  to  take  their 
places,  so  long  as  it  is  neither  coercive  and  intimidating  in 
character.  (Jones  v.  Van  Winkle.) 

These  opinions  express  a  view  very  favorable  to  the 
picket.  Not  all  courts  are  ready  to  admit  that  it  is  so  easy 
to  separate  the  act  of  picketing  from  acts  of  intimidation. 
There  are  many  cases  where  evidence  of  this  may  be  found. 
One  of  these  is  Beck  v.  Railway  Teamsters,  in  which  Chief 
Justice  Grant  says: 

To  picket  complainants’  premises  in  order  to  intercept  their 
teamsters  or  persons  going  there  to  trade  is  unlawful.  It  itself 
is  an  act  of  intimidation,  and  an  unwarrantable  interference 
with  the  right  of  free  trade.  The  highways  and  public  streets 
must  be  free  to  all  for  the  purposes  of  trade,  commerce,  and 
labor.  The  law  protects  the  buyer,  the  seller,  the  merchant, 
the  manufacturer,  and  the  laborer  in  the  right  to  walk  and  use 
the  streets  unmolested.  It  is  no  respecter  of  persons ;  and  it 
makes  no  difference,  in  effect,  whether  the  picketing  is  done 
10  or  1,000  feet  away. 

It  will  not  do  to  say  that  these  pickets  are  thrown  out  for 
the  purpose  of  peaceable  argument  and  persuasion.  They 
are  intended  to  intimidate  and  coerce. 

Another  expression  is  by  Judge  Mitchell: 

An  attempt  is  made  to  argue  that  the  strikers  only  congre¬ 
gated  at  the  place  of  arrival  of  the  new  men,  in  accordance 
with  the  custom  at  boat  and  train  arrivals  in  small  towns. 
But  this  disguise  is  too  flimsy  to  hide  the  real  purpose.  If 
they  desired  in  good  faith  to  meet  peaceably  and  lawfully  for 


124 


AMERICAN  COURTS  IN  LABOR  CASES 


their  own  business,  they  should  have  selected  another  place, 
sufficiently  remote  to  be  free  from  the  excitement  and  crowds 
which,  their  own  testimony  admits,  attended  the  arrival  of 
the  new  men,  and  also  far  enough  away  to  avoid  the  intimi¬ 
dating  effect  of  a  hostile  crowd  on  the  newcomers.  But,  in 
truth,  they  did  not  desire  to  avoid  that  effect.  On  the  con¬ 
trary,  that  was  what  they  were  there  for,  and  their  presence 
indicates  their  real  intentions  too  plainly  for  any  verbal  de¬ 
nials  on  their  part  to  offset. 

It  is  further  urged  that  the  strikers,  through  their  com¬ 
mittees,  only  exercised  (“  insisted  on  ”  is  the  phrase  their 
counsel  use  in  the  court)  their  right  to  talk  to  the  new  men 
to  persuade  them  not  to  go  to  work.  There  was  no  such  right. 
These  men  were  there  presumably  under  contract  with  the 
plaintiff,  and  certainly  in  search  of  work,  if  not  yet  actually 
under  pay.  They  were  not  at  leisure,  and  their  time,  whether 
their  own  or  their  employer’s,  could  not  lawfully  be  taken 
up,  and  their  progress  interfered  with,  by  these  or  any  other 
outsiders,  on  any  pretense  or  under  any  claim  of  right  to 
argue  or  persuade  them  to  break  their  contracts.  Even,  there¬ 
fore,  if  the  arguments  and  persuasion  had  been  confined  to 
lawful  means,  they  were  exerted  at  an  improper  time,  and 
were  an  interference  with  the  plaintiff’s  rights  which  made 
the  perpetrators  liable  for  any  damages  the  plaintiff  suffered 
in  consequence.  (O’Neil  v.  Behanna.) 

District  Judge  Beatty  says: 

The  law  does  give  the  right  of  peaceable  persuasion.  It  is 
the  abuse  of  this  right  which  leads  to  all  the  trouble.  In 
their  desire  to  succeed  they  too  often  go  in  great  numbers. 
Among  them  are  generally  some  who  are  lawless  and  reckless 
of  rights  or  consequences.  They  do  that  which  the  conser¬ 
vative  and  better  classes  do  not  approve  of,  and  the  general 
result  is  that  the  conscious  power  of  great  numbers  leads 
along  from  one  act  to  another,  to  the  usual  end  that  violence 
and  abuse  are  resorted  to  when  advice  and  persuasion  fail. 


THE  PICKET 


125 


But  it  must  be  understood  that  when  any  assemble  in  numbers 
for  some  object  they  must  be  held  responsible  for  what  their 
associates  do,  whether  they  approve  of  or  advise  it  or  not. 
(Gulf  Bag  Co.  v.  Suttner.) 

Presiding  Judge  Evans,  of  Georgia,  states  further  in  his 
opinion  already  quoted : 

When  strikers  patrol  the  streets  and  approaches  of  the 
premises  where  the  strike  is  in  progress,  and  their  number 
is  so  great,  or  their  conduct  is  such,  as  to  intimidate  and  co¬ 
erce  the  employees  into  quitting  their  employment,  or  others 
from  seeking  employment,  they  are  guilty  of  unlawful  acts, 
and  will  be  enjoined  from  a  continuance  of  them.  Sometimes 
the  number  of  strikers  engaged  on  the  patrol  may  be  so  great 
that  those  intended  to  be  affected  by  the  demonstration  will 
be  intimidated  by  the  number  of  the  strikers  or  their  sympa¬ 
thizers  without  special  overt  acts.  The  courts  have  repeat¬ 
edly  held  that  the  assembling  of  strikers  around  the  establish¬ 
ment  of  the  employer  in  such  numbers  as  will  serve  as  a 
menace  to  those  employed,  or  the  keeping  of  patrols  in  front 
of  or  about  the  premises  of  the  employer,  accompanied  by  vio¬ 
lence  or  any  manner  of  coercion  to  prevent  others  from  en¬ 
tering  into  or  remaining  in  his  service,  will  be  enjoined.  .  .  . 

The  very  word  “  picket  ”  is  borrowed  from  the  nomencla¬ 
ture  of  warfare,  and  is  strongly  suggestive  of  a  hostile  atti¬ 
tude  towards  the  individual  or  corporation  against  whom  the 
labor  union  has  a  grievance.  To  quote  Mr.  Eddy:  “  It  is  con¬ 
ceivable,  however,  that  a  picket  entirely  lawful  might  be  es¬ 
tablished  about  a  factory,  but  such  a  picket  would  go  no  further 
than  interviews  and  lawful  persuasion  and  inducement.  The 
slightest  evidence  of  threats,  violence,  or  intimidation  of  any 
character  ought  to  be  sufficient  to  convince  court  and  jury  of 
the  unlawful  character  of  the  picket,  since  the  picket  under 
the  most  favorable  considerations  means  an  interference  be¬ 
tween  the  employer  seeking  employees  and  men  seeking  em¬ 
ployment.”  (Jones  v.  Van  Winkle.) 


126 


AMERICAN  COURTS  IN  LABOR  CASES 


Such  views  are  not  always  so  judiciously  expressed.  Ex¬ 
treme  statements,  like  the  following,  are  also  found : 

There  is  and  can  be  no  such  thing  as  peaceful  picketing, 
any  more  than  there  can  be  chaste  vulgarity,  or  peaceful  mob¬ 
bing,  or  lawful  lynching.  When  men  want  to  converse  or  per¬ 
suade,  they  do  not  organize  a  picket  line.  When  they  only 
want  to  see  who  are  at  work,  they  go  and  see,  and  then  leave, 
and  disturb  no  one  physically  or  mentally.  .  .  .  The  argument 
seems  to  be  that  anything  short  of  physical  violence  is  lawful. 
One  man  can  be  intimidated  only  when  knocked  down.  But 
the  peaceful,  law-abiding  man  can  be  and  is  intimidated  by 
gesticulations,  by  menaces,  by  being  called  harsh  names,  and 
by  being  followed,  or  compelled  to  pass  by  men  known  to  be 
unfriendly.  Perhaps  such  a  man  may  not  be  a  bully,  but  is 
frail  in  size  and  strength,  or  he  may  be  a  timid  man,  but  such 
a  man  is  just  as  much  entitled  to  go  and  come  in  quiet,  with¬ 
out  even  mental  disturbance,  as  is  the  man  afraid  of  no  one 
and  able  with  or  without  weapons  to  cope  with  all  comers. 
The  frail  man,  or  the  man  who  shuns  disturbances,  or  the 
timid  man,  must  be  protected,  and  the  company  has  the  right 
to  employ  such.  (District  Judge  McPherson,  Atchinson  T.  & 
S.  F.  Ry.  Co.  v.  Gee.) 

District  Judge  Sanborn,  in  Allis  Chalmers  Co.  v.  Iron 
Moulders  Union,  declares  that, 

while  “  peaceful  picketing  ”  is  very  much  of  an  illusion,  yet 
it  is  at  least  theoretically  possible,  and  entirely  lawful.  .  .  . 
Where  peaceful  picketing  develops,  as  it  generally  does  in  a 
strike,  into  “  strong,  persistent,  and  organized  persuasion,” 
and  social  pressure  of  every  description,  making  the  condition 
of  workmen  disagreeable  and  intolerable,  followed  by  hints  of 
injury,  veiled  threats,  offensive  or  abusive  language,  and  occa¬ 
sional  instances  of  assault  and  personal  violence  .  .  .  the  con¬ 
dition  has  passed  from  that  of  the  peaceful  purpose  of  pro¬ 
moting  the  economic  ends  of  the  union  men,  and  has  entered 


THE  PICKET 


127 


the  unlawful  stage  of  malicious  injury,  without  just  cause  or 
excuse,  to  rights  just  as  important,  and  as  fully  protected  by 
the  Constitution,  as  those  on  whose  behalf  these  acts  are  com¬ 
mitted. 

The  foregoing  extracts  indicate  how  hard  it  is  to  dis¬ 
tinguish  between  the  legal  picket  and  the  illegal  in  any 
practical  way.  This  difficulty  does  not  pass  unrecognized 
by  the  judges,  and  in  some  opinions  it  is  openly  expressed. 
Presiding  Judge  Evans,  whose  opinion  has  been  referred 
to,  points  out  that 

the  lawfulness  or  unlawfulness  of  “  picketing  ”  has  been  the 
subject-matter  of  discussion  in  a  large  number  of  cases  in  this 
country.  ...  In  many  cases  it  may  be  difficult  to  draw  the 
line  of  demarcation  between  intimidation  and  inoffensive  per¬ 
suasion.  In  a  New  York  case  it  was  said:  “It  may  be  im¬ 
possible  to  lay  down  a  general  rule  as  to  what  surrounding 
circumstances  will  characterize  persuasion  and  entreaty  as  in¬ 
timidation.  Each  case  must  probably  depend  upon  its  own 
surroundings.  But,  where  evidence  presents  such  a  case  as  to 
convince  the  court  that  the  employees  are  being  induced  to 
leave  the  employer  by  operating  upon  their  fears  rather  than 
upon  their  judgments  or  their  sympathy,  the  court  will  be 
quick  to  lend  its  strong  arm  to  his  protection.” 

That  general  principles  alone  apart  from  the  circum¬ 
stances  of  the  case  are  not  sufficient  basis  for  judgment  is 
pointed  out  by  Judge  Holmes  in  the  following  terms: 

The  true  grounds  of  decision  are  considerations  of  policy 
and  of  social  advantage,  and  it  is  vain  to  suppose  that  solu¬ 
tions  can  be  attained  merely  by  logic  and  general  proposi¬ 
tions  of  law  which  nobody  disputes.  Propositions  as  to  public 
policy  rarely  are  unanimously  accepted,  and  still  more  rarely, 
if  ever,  are  capable  of  unanswerable  proof. 


128 


AMERICAN  COURTS  IN  LABOR  CASES 


Such  are  the  types  of  opinion  as  expressed  in  the  leading 
cases.  The  authorities  seem  to  agree  that  picketing,  in  its 
limited  sense,  is  not  unlawful.  Following  the  favorable  in¬ 
terpretations  of  common  law,  and  for  the  purpose  of  an¬ 
nulling  those  interpretations  that  are  not  favorable,  the 
English  Parliament  has  legalized  the  picket  by  special  legis¬ 
lative  enactment.  This  course  has  been  followed  in  several 
states  of  the  Union.  Where  such  laws  have  not  been  en¬ 
acted,  the  same  effect  has  been  secured  by  court  interpre¬ 
tation  of  common  law.  Stimson  concludes  that  the  law  has 

pretty  well  settled  down  to  the  view  that  picketing,  for  the 
purpose  of  mere  persuasion  of  workmen  not  to  take  employ¬ 
ment,  and  not  attended  with  any  disorder  or  physical  or  moral 
intimidation,  is  now  held  legal ;  at  least  when  conducted  in  a 
reasonable  manner  and  with  not  too  great  a  crowd.1 

Even  Cogley  agrees  that  picketing  is  legal,  though  he  does 
so  reluctantly.  “  Ordinarily,”  he  says,  “  picketing  is  a  part 
of  boycotting,”  but  legislatures 

have  so  far  yielded  to  the  encroachments  of  mobs  as  to  legal¬ 
ize  acts  and  conduct  that  at  first  were  crimes.  It  may  now  be 
stated  as  to  the  rule  both  in  England  and  the  United  States 
that  if  picketing  is  peacefully  conducted  and  the  acts  of  the 
pickets  confined  to  watching,  observation  and  persuasion,  it 
is  not  a  criminal  offense.2 

The  lawfulness  of  the  picket,  then,  seems  established. 
Yet  one  cannot  read  the  opinions  without  feeling  that  many 
judges  admit  the  legality  with  reluctance.  The  very  fact 
that  the  matter  is  involved  in  a  disturbance  that  is  serious 
enough  to  be  brought  into  court  is  sufficient  to  create  an 
atmosphere  that  is  hostile  to  favorable  consideration.  The 

1  Handbook,  p.  290. 

2  Lazv  of  Strikes,  p.  290. 


THE  PICKET 


129 


predilection  of  judges  for  fair  play  and  their  thorough 
schooling  in  the  rights  of  individuals  make  it  easy  for  the 
implications  of  the  charge  to  have  considerable  weight. 
Then  recognition  of  the  broad  and  not  very  clearly  defined 
meaning  of  the  term  “  intimidation,”  as  including  the  men¬ 
tal  and  moral  as  well  as  the  physical,  makes  it  easy  to  find 
that  picketing  is  intimidating  in  its  effects.  It  is  of  interest 
to  note  that  some  of  the  broadest  and  most  unequivocal 
statements  of  the  legality  of  the  picket  in  itself  are  in  con¬ 
nection  with  cases  where  the  violence  and  intimidation  have 
been  most  flagrant.  The  riotous  conditions  make  it  easy  to 
find  grounds  for  legal  condemnation.  Where  the  acts  are 
less  flagrant,  and  where  the  picket  has  been  conducted  in  a 
more  orderly  and  peaceful  manner,  these  general  statements 
of  the  lawfulness  of  the  picket  in  itself  give  way  to  finer- 
spun  definitions  of  intimidation,  to  the  drawing  of  the  line 
so  that  the  boundaries  of  lawful  picketing  are  considerably 
narrowed.  The  conclusion  suggested  by  the  opinions  is 
that  judges  do  not  look  with  favor  upon  the  picket  but  that 
they  are  led  to  admit  its  legality  within  very  narrow  limits 
by  the  force  of  logical  inference  flowing  from  well-known 
and  generally-accepted  legal  principles.  The  courts  always 
stand  ready  to  defend  personal  liberty,  and  they  are  willing 
to  leave  room  for  the  legal  picket  rather  than  yield  so  much 
of  the  principles  of  personal  liberty  as  would  be  necessary 
to  condemn  it  in  law.  It  is  doubtful,  however,  if  one  can  ex¬ 
pect  much  progress  toward  a  recognition  of  a  broader  right 
to  picket  through  judicial  decisions.  The  strike  has  come 
into  full  legal  recognition.  The  boycott  also,  but  to  a  less 
extent.  There  is  not  the  same  hope  for  the  picket.  Views 
of  motive  and  of  action  in  combination  appear  to  change 
more  readily  than  views  of  coercion  and  intimidation. 


CHAPTER  VII 

* 

The  Blacklist 

Discussions  of  blacklisting  are  not  such  as  to  contribute 
much  to  the  purpose  of  this  work.  Cases  which  deal  with 
it  are  involved  in  details  and  special  circumstances  and  the 
discussion  of  these  occupies  by  far  the  larger  portion  of 
the  opinions. 

In  1892  a  case  came  before  the  supreme  court  of  Massa¬ 
chusetts.  Some  weavers  had  struck  for  higher  wages. 
Their  employer  sent  their  names  to  other  mills  on  a  black¬ 
list.  The  weavers  were  unable  to  find  work.  The  matter 
was  brought  to  court  on  a  charge  of  conspiracy  against  the 
employers.  Chief  Justice  Field,  of  Massachusetts,  who 
wrote  the  opinion,  was  particularly  guarded  in  expressing 
the  view  of  the  court. 

If  the  petition  sets  forth  such  a  conspiracy  as  constitutes  a 
misdemeanor  at  common  law — on  which  we  express  no  opin¬ 
ion — the  remedy  is  by  indictment.  If  the  injury  which  had 
been  received  by  the  petitioners  at  the  time  the  petition  was 
filed  constitutes  a  cause  of  action — on  which  we  express  no 
opinion — the  remedy  is  by  an  action  of  tort,  to  be  brought  by 
each  petitioner  separately.  The  only  grievance  alleged  which 
is  continuing  in  its  nature  is  the  conspiracy  not  to  employ  the 
petitioners,  and  there  are  no  approved  precedents  in  equity 
for  enjoining  the  defendants  from  continuing  such  a  conspir¬ 
acy,  or  for  compelling  the  defendants  either  to  employ  the  pe¬ 
titioners  or  to  procure  employment  for  them  with  other  per¬ 
sons.  (Worthington  v.  Waring.) 

130 


THE  BLACKLIST 


I3I 

In  Hundley  v.  L.  and  N.  Railroad  Co.,  the  defendant 
complained  that  he  had  been  blacklisted  by  railroads  and 
was  unable  to  secure  employment.  Damages  were  asked  in 
the  sum  of  five  thousand  dollars.  Judge  Paynter  of  Ken¬ 
tucky,  in  writing  the  opinion,  states  the  familiar  principles 
of  law  that  express  in  general  terms  the  rights  of  both  em¬ 
ployers  and  employees.  The  opinion  is  then  brought  to  its 
conclusion  in  the  following  sentences : 

The  petition  does  not  state  a  cause  of  action  against  the 
defendant.  The  averments  that  he  had  been  deprived  of  the 
“right”  to  again  engage  in  the  employment  of  other  railroad 
companies,  and  that  the  alleged  wrongful  act  had  made  it  im¬ 
possible  for  him  to  ever  again  get  employment  with  other  rail¬ 
road  companies,  are  mere  conclusions  of  the  pleader  from  the 
facts  alleged.  It  should  have  been  averred  that  he  had 
sought,  and  been  refused,  employment  by  reason  of  the  alleged 
wrongful  act.  An  agreement  made  with  other  railroad  com¬ 
panies  not  to  employ  defendant’s  discharged  employees  does 
not  injure  the  plaintiff  unless  carried  out.  An  averment  that 
the  defendant  conspired  and  combined  with  other  railroad 
companies  to  do  an  act,  if  unlawful,  would  not  obviate  the 
necessity  of  making  the  averment  that  he  had  sought  and  been 
refused  employment  by  reason  of  the  alleged  wrongful  act. 
Injury  is  the  gist  of  the  action.  The  liability  is  damages  for 
doing,  not  for  conspiracy.  The  charge  of  conspiracy  does  not 
change  the  nature  of  the  act.  In  an  action  for  damages, 
there  must  be  some  overt  act,  consequent  upon  the  agreement 
to  do  a  wrong,  to  give  the  plaintiff  a  standing  in  a  court  of 
law. 

The  blacklist  was  involved  in  the  case  of  the  alleged  at¬ 
tempt  of  the  Western  Union  to  break  up  the  Commercial 
Telegraphers’  Union.  The  opinion  in  that  case  was  written 
by  District  Judge  Rogers  from  the  bench  of  the  circuit 
court. 


132 


AMERICAN  COURTS  IN  LABOR  CASES 


But  it  is  said  that  defendant  maintains  a  blacklist  contain¬ 
ing  a  list  of  names  of  such  persons  as  may  have  incurred  its 
displeasure  and  have  been  discharged  from  its  service,  and 
that,  by  methods  not  known  to  them,  it  prevents  such  dis¬ 
charged  persons  from  getting  employment  as  telegraph  oper¬ 
ators  ;  that  they  have  blacklisted  people  solely  because  they 
belong  to  the  union,  and  that  they  intend  to  blacklist  others 
for  the  same  thing,  etc.  We  have  seen  it  is  not  unlawful  to 
discharge  plaintiffs  because  they  belong  to  the  union.  Is  it 
unlawful  for  defendant  to  keep  a  book  showing  that  they 
were  discharged  because  they  belonged  to  the  union?  The 
union  presumably,  and  especially  in  view  of  the  allegations  in 
the  bill,  is  an  honorable,  reputable,  and  useful  organization, 
intended  to  better  the  conditions  and  elevate  the  character  of 
its  members.  Is  it  illegal  for  defendant  to  keep  a  book  show¬ 
ing  that  it  had  discharged  members  of  such  a  union  solely 
because  they  belong  to  it?  That  seems  to  be  the  real  essence 
of  the  bill.  Is  it  illegal  to  notify  others  that  it  keeps  such  a 
book  and  that  they  can  inspect  it,  or  to  inform  others  what 
such  a  book  shows?  That  seems  to  be  the  ground  of  com¬ 
plaint.  There  can  be  no  question  about  it ;  the  positive,  direct, 
and  unequivocal  allegation  is  that  defendant  keeps  such  a 
book;  that  plaintiffs  are  placed  on  it  solely  because  they  be¬ 
long  to  the  union,  and  have  been  discharged  solely  because 
they  did  belong  to  the  union.  Can  a  court  of  equity  grant 
relief  to  a  man  who  says  for  his  cause  of  action  that  he  be¬ 
longs  to  a  reputable  organization,  and  that  he  has  been  dis¬ 
charged  solely  because  he  did  belong  to  it ;  that  his  employer 
who  discharged  him  keeps  a  book  on  which  is  placed  his 
name,  and  has  set  opposite  thereto  the  fact  that  he  discharged 
him  solely  because  he  belonged  to  such  organization ;  and  that 
he  gives  that  information  to  other  persons,  who  refuse  to  em¬ 
ploy  him  on  that  account?  Suppose  a  man  should  file  a  bill 
alleging  that  he  belonged  to  the  Honorable  and  Ancient  Order 
of  Freemasons,  or  to  the  Presbyterian  Church,  or  to  the  Grand 
Army  of  the  Republic ;  that  his  employer  had  discharged  him 
solely  on  that  account ;  that  he  had  discharged  others  of  his 


THE  BLACKLIST 


133 


employees,  and  intended  to  discharge  all  of  them,  for  the  same 
reason ;  that  he  kept  a  book  which  contained  all  the  names 
of  such  discharged  persons,  and  set  opposite  the  name  of  each 
discharged  person  the  fact  that  he  had  been  discharged  solely 
on  the  ground  that  he  belonged  to  such  organization;  and  that 
he  had  given  such  information  to  others,  who  refused  to  em¬ 
ploy  such  persons  on  that  account.  Is  it  possible  a  court  of 
equity  could  grant  relief?  If  so,  pray,  on  what  ground?  And 
yet  that  is  a  perfectly  parallel  case  to  this  as  made  by  the  bill. 
(Boyer  v.  Western  Union.) 

One  of  the  most  recent  reported  cases  in  which  the  prin¬ 
ciple  of  the  blacklist  is  dealt  with  occurred  in  1909.  In 
this  opinion  Judge  Henry,  of  Maryland,  wrote: 

It  may  be  well  to  announce  as  a  principle  of  law  that  any 
malicious  interference  with  the  business  or  occupation  of  an¬ 
other,  if  followed  by  damage,  is  an  actionable  wrong.  Such 
interference  may  be  by  a  single  individual,  or  by  a  number  of 
individuals  conspiring  together,  but  it  is  the  damage  which 
constitutes  the  gist  of  the  action,  and  not  the  conspiracy;  the 
latter  being  a  matter  of  aggravation,  if  proven,  as  affecting  the 
means  and  manner  of  redress.  We  find  no  Maryland  case  that 
goes  to  the  extent  of  sustaining  the  position  contended  for 
by  the  appellant  to  the  effect  that  the  “  blacklisting  ”  of  dis¬ 
charged  employees  by  a  combination  of  employers  is  in  itself 
actionable,  without  proof  of  damage.  .  .  .  An  employer,  where 
no  right  of  contract  is  involved,  may  lawfully  discharge  an 
employee  at  what  time  he  pleases,  and  for  what  cause  he 
chooses,  while,  on  the  other  hand,  an  employee  may  sell  his 
labor  to  whomsoever  he  desires,  at  such  wages  as  he  is  will¬ 
ing  to  accept,  and  may  quit  such  employment  at  his  pleas¬ 
ure,  yet  neither  has  the  right  to  interfere,  without  cause,  with 
the  business  or  occupation  of  the  other.  While  the  law  does 
not  furnish  a  shield  against  the  effects  of  fair  and  honest 
competition,  yet  injury  to  the  business  of  another,  if  accom¬ 
plished  by  threats  or  coercion,  constitutes  a  ground  of  action 


134 


AMERICAN  COURTS  IN  LABOR  CASES 


for  damages  on  the  part  of  the  person  so  injured.  In  further¬ 
ance  of  their  common  welfare  and  in  settlement  of  their  oft- 
times  conflicting  interests,  both  employers  and  employees 
stand  upon  a  plane  of  perfect  equality  before  the  law,  enjoy¬ 
ing  the  same  freedom  and  amenable  to  the  same  restrictions. 
Both  may  combine  in  unions  or  associations,  but  such  asso¬ 
ciations,  like  individuals,  must  employ  lawful  methods  for  the 
attainment  of  lawful  purposes.  This  was  not  always  so.  .  .  . 
It  is  now  clearly  settled  that  the  same  law  which  permits  the 
organization  of  employers,  and  interposes  to  protect  manu¬ 
facturers  and  merchants  from  the  violence  of  “  strikes/’  or 
the  “  intimidation  of  boycotts,”  is  also  vigilant  to  see  that  the 
right  and  opportunity  to  work,  which  is  the  most  valuable 
asset  of  the  laboring  man,  as  well  as  the  privilege  of  organiza¬ 
tion,  shall  not  be  unjustifiably  interfered  with  by  employers, 
acting  either  as  individuals  or  in  combinations.  (Willner  v. 
Silverman.) 

In  Minnesota  the  question  came  up  on  the  interpretation 
of  a  statute,  entitled,  “  An  act  to  prohibit  the  practice  of 
black-listing  and  the  coercing  and  influencing  of  employees 
by  their  employers.”  The  contention  was  that  the  law  in¬ 
fringed  the  right  of  the  employer,  a  “  natural  right,  under 
the  constitution,  state  and  federal,  to  give  such  advice  and 
information  as  he  desires  with  respect  to  his  employees, 
whether  they  have  been  discharged  for  cause  or  without 
cause,  or  whether  they  have  voluntarily  left  the  employ¬ 
ment.”  The  opinion  does  not  adopt  such  a  view.  An  em¬ 
ployee  who  voluntarily  leaves  his  employment,  says  the 
opinion, 

is  entitled  to  the  presumption  that  his  reputation  as  an  em¬ 
ployee  has  been  unharmed  by  the  fact  of  his  leaving.  The 
fact  that  such  an  employee  voluntarily  abandons  his  employ¬ 
ment  does  not  give  the  employer  a  right  to  prejudice  his  em¬ 
ployment  elsewhere.  Under  such  circumstances  a  communi¬ 
cation  designed  to  prevent  such  employment  is  presumably  a 


THE  BLACKLIST 


135 


reflection  upon  the  standing  of  the  employee.  .  .  .  The  act 
does  not  attempt  to  interfere  with  the  right  of  an  employer  to 
discharge  an  employee  for  cause  or  without  cause.  It  does 
not  seek  to  prohibit  an  employer  from  communicating  to 
other  employers  the  nature  and  character  of  his  employees, 
when  ihe  facts  would  be  for  their  interests.  While  such  in¬ 
terference  by  an  employer  is  not  expressly  characterized  as 
malicious,  that  intent  is  necessarily  implied.  It  is  the  purpose 
of  this  law  to  protect  employees  in  the  enjoyment  of  those 
natural  rights  and  privileges  guaranteed  them  by  the  constitu¬ 
tion,  viz.,  the  right  to  sell  their  labor  and  acquire  property 
thereby.  The  act  is  valid.  (State  v.  Justus.) 

These  views  indicate  that  the  question  is  both  new  and 
difficult  for  the  courts  so  far  as  it  concerns  the  particular 
application  of  general  rules.  Reasoned  on  the  basis  of  gen¬ 
eral  rights,  the  employer  may  discharge  or  refuse  to  employ 
for  any  reason  or  for  no  reason.  The  advantage  here  cer¬ 
tainly  lies  with  the  employer.  The  charge  of  conspiracy 
cannot  be  raised  with  the  same  degree  of  success  as  it  has 
been  by  employers.  The  numbers  are  not  so  great  and 
conspiracy  is  more  difficult  to  prove.  The  employers  may 
act  with  an  understanding  much  more  easily  than  can  the 
employees  and  consequently  a  more  elaborate  organization 
is  not  necessary.  Blacklisting  is  not  easy  to  establish  as  a 
legal  fact.  All  of  these  considerations  make  it  difficult  to 
bring  cases  before  the  court  and  still  more  difficult  to  estab¬ 
lish  to  the  court’s  satisfaction  that  the  rights  of  the  em¬ 
ployees  are  being  infringed  to  an  unlawful  extent. 

Legislation  to  prevent  blacklisting  has  been  enacted  by 
several  states.  The  court  in  the  above  cited  case  upheld  the 
principle  involved  in  the  legislation.  But  laws  of  this  kind 
are  difficult  to  enforce  for  the  reasons  already  stated.  The 
act  which  is  forbidden  is  not  easy  to  detect  nor  to  prove  to 
the  satisfaction  of  a  court  of  law. 


CHAPTER  VIII 


Unionism 

In  the  preceding  chapters  the  more  characteristic  methods 
of  labor  organizations  have  been  treated.  While  the  strike 
and  the  boycott  are  among  the  most  generally  known  activi¬ 
ties  of  these  associations,  they  do  not  complete  the  list. 
There  remains  a  large  field  within  which  their  activities  are 
of  industrial  importance.  These  activities  are  with  increas¬ 
ing  frequency  brought  before  the  courts.  The  result  is  that 
the  number  of  opinions  is  large,  the  variety  of  problems 
dealt  with  complex  and  the  conclusions  reached  not  alto¬ 
gether  in  agreement.  These  varied  problems  may  all  be 
gathered  together  under  the  general  heading,  Unionism, 
though  they  include  a  great  variety  of  topics. 

First  there  is  the  fact  of  the  union,  the  organization  of 
laborers  associated  together  for  a  common  purpose  and 
under  definite  rules  and  regulations.  What  is  the  attitude 
of  courts  toward  unionism  itself  ?  The  answer  may  be  con¬ 
sidered  with  reference  to  two  quite  distinct  points:  (i)  the 
union,  the  fact  of  organization  or  combination;  (2)  the  ac¬ 
tivities  of  the  union,  the  policies  it  adopts  and  the  means  i: 
uses  to  carry  them  into  effect.  The  second  of  these  two 
points  may  be  subdivided  into  a  number  of  special  topics. 
They  will  be  considered  in  turn  in  the  chapters  that  follow. 

How  do  courts  regard  the  existence  of  associations  of 
workmen?  In  a  preceding  chapter,  the  attitude  during  the 
first  half  of  the  nineteenth  century  has  been  described.  This 
period  closed  with  the  influential  opinion  in  the  case  of 
13* 


UNIONISM 


!37 


Commonwealth  v.  Hunt.  From  that  time  to  the  present 
there  has  been  a  steady  expression  by  various  judges  of 
opinions  similar  to  that  one  in  principle.  In  that  early  case, 
as  already  shown,  Chief  Justice  Shaw  made  it  clear  that 
associations  might  be  formed  for  purposes  that  were  useful 
and  honorable,  as,  for  example,  to  afford  assistance  m  sick¬ 
ness,  distress  or  poverty  or  other  praiseworthy  objects. 
There  may  be  some  reasonable  ground  for  holding  that  this 
view  was  entertained  from  the  first  although  not  so  clearly 
expressed.  Whether  this  be  so  or  not,  the  expressions  are 
now  so  generally  scattered  throughout  the  opinions  that 
one  cannot  doubt  that  courts  'accept  without  question  the 
view  that  associations  of  laborers,  so  far  as  the  mere  fact 
of  association  apart  from  their  acts  is  concerned,  are  lawful. 
The  influence  of  precedent  is  of  course  strong.  It  appears 
frequently.  It  finds  a  double  authority  when  Judge  Brown¬ 
ing  of  Minnesota  (Gray  v.  Building  Trades  Council) 
quotes  from  Judge  Thayer  of  the  United  States  circuit 
court  of  appeals  (Hopkins  v.  Oxley  Stave  Co.)  :  “  The 
courts  have  invariably  upheld  the  right  of  individuals  to 
form  labor  organizations  for  the  protection  of  the  interests 
of  laboring  classes.”  In  Curran  v.  Galen  is  read  the  further 
statement  that  “  In  the  general  consideration  of  the  subject, 
it  must  be  premised  that  the  organization  or  the  co-opera¬ 
tion  of  workingmen  is  not  against  any  public  policy.” 

More  broadly  than  these  quotations  would  indicate; 
courts  sometimes  view  the  fact  of  organization  from  a  dif¬ 
ferent  angle.  One  of  these  views  may  be  expressed  in 
terms  of  individualism,  the  right  of  individuals  to  com¬ 
bine.  Reasoning  from  this  starting  point,  courts  find  an¬ 
other  basis  for  justification.  The  Wabash  Railroad  case  af¬ 
fords  an  instance  of  this.  The  opinion,  after  citing  several 
authorities,  concludes : 


AMERICAN  COURTS  IN  LABOR  CASES 


138 

Enough  has  been  said  to  clearly  indicate  the  general  rule, 
which  may  be  briefly  summarized  as  follows :  An  employee 
has  an  unquestionable  right  to  place  a  price  and  impose  con¬ 
ditions  upon  his  labor  at  the  outset  of  his  employment,  or, 
unless  restrained  by  contract  obligations,  upon  the  continu¬ 
ance  of  his  labor  at  any  time  thereafter;  and,  if  the  terms  and 
conditions  are  not  complied  with  by  the  employer,  he  has  a 
clear  right  either  not  to  engage  or  having  engaged  in  his  ser¬ 
vice  to  cease  from  work.  What  one  may  do  all  may  do. 

They  may  seek  and  obtain  counsel  and  advice  concerning 
their  rights,  duties,  and  obligations  in  relation  to  their  em¬ 
ployer,  and  persons  interested  in  their  welfare  may  advise, 
aid,  and  assist  them  in  securing  such  terms  and  conditions  of 
service  as  will  best  subserve  their  interests,  and  what  they 
may  lawfully  do  singly  or  together  they  may  organize  and 
combine  to  accomplish. 

judge  Loring  of  Massachusetts  enters  upon  an  elaborate 
discussion  of  these  rights  in  Pickett  v.  Walsh. 

The  right  of  laborers  to  organize  unions  ...  is  an  exercise 
of  the  common-law  right  of  every  citizen  to  pursue  his  calling, 
whether  of  labor  or  business,  as  he  in  his  judgment  thinks  fit. 
.  .  .  This  common-law  right  was  raised  to  the  dignity  of  a 
constitutional  right  by  being  incorporated  in  the  constitution 
of  the  commonwealth.  ...  In  Article  I.  of  the  Declaration  of 
Rights  it  is  declared  that  “  all  men  are  born  free  and  equal, 
and  have  certain  natural,  essential,  and  unalienable  rights ; 
among  which  may  be  reckoned  the  right  of  .  .  .  acquiring, 
possessing,  and  protecting  property;  in  fine,  that  of  seeking  and 
obtaining  their  safety  and  happiness.”  It  is  in  the  exercise  of 
this  right  that  laborers  can  legally  combine  together  in  what 
are  called  labor  unions.  [This  right  is  simply  the  right  of 
every  individual,  and]  is  limited  by  the  existence  of  the  same 
right  in  all  other  citizens.  [Quoting  from  Sir  William  Earl’s 
Trade  Unions]  :  Every  person  has  a  right  under  the  law,  as 
between  him  and  his  fellow  subjects,  to  full  freedom  in  dis- 


UNIONISM 


*39 


posing  of  his  own  labor  or  his  own  capital  according  to  his 
own  will.  It  follows  that  every  other  person  is  subject  to  the 
correlative  duty  arising  therefrom,  and  is  prohibited  from  any 
obstruction  to  the  fullest  exercise  of  this  right  which  can  be 
made  compatible  with  the  exercise  of  similar  rights  by  others. 

To  this  may  be  added  the  remarks  of  Circuit  Judge  Taft 
in  the  Thomas  case. 

Now,  it  may  be  conceded  in  the  outset  that  the  employees 
of  the  receiver  had  the  right  to  organize  into  or  to  join  a  labor 
union  which  should  take  joint  action  as  to  their  terms  of  em¬ 
ployment.  It  is  of  benefit  to  them  and  to  the  public  that 
laborers  should  unite  in  their  common  interest  and  for  lawful 
purposes.  They  have  labor  to  sell.  If  they  stand  together, 
they  are  often  able,  all  of  them,  to  command  better  prices  for 
their  labor  than  when  dealing  singly  with  rich  employers,  be¬ 
cause  the  necessities  of  the  single  employee  may  compel  him 
to  accept  any  terms  offered  him.  The  accumulation  of  a  fund 
for  the  support  of  those  who  feel  that  the  wages  offered  are 
below  market  prices  is  one  of  the  legitimate  objects  of  such 
an  organization.  They  have  the  right  to  appoint  officers  who 
shall  advise  them  as  to  the  course  to  be  taken  by  them  in  their 
relations  with  their  employer.  They  may  unite  with  other 
unions.  The  officers  they  appoint,  or  any  other  person  to 
whom  they  choose  to  listen,  may  advise  them  as  to  the  proper 
course  to  be  taken  by  them  in  regard  to  their  employment,  or, 
if  they  choose  to  repose  such  authority  in  any  one,  may  order 
them,  on  pain  of  expulsion  from  their  union,  peaceably  to 
leave  the  employ  of  their  employer  because  any  of  the  terms 
of  their  employment  are  unsatisfactory. 

Still  another  of  these  various  views  that  courts  have 
adopted  in  justification  of  unionism  may  be  expressed  in 
terms  of  association  and  combination,  facts  so  obvious  in 
modern  competitive  industry.  Thus  in  Curran  v.  Galen  the 
court  says :  “It  is  proper  and  praiseworthy,  and  perhaps 


140 


AMERICAN  COURTS  IN  LABOR  CASES 


falls  within  the  general  view  of  human  society  which  per¬ 
ceives  an  underlying  law  that  men  should  unite  to  achieve 
that  which  each  by  himself  cannot  achieve,  or  can  achieve 
less  readily.”  This  is  stated  in  terms  very  general.  Other 
expressions  come  much  nearer  to  practical  affairs.  The 
clearest  instance  of  this  view  is  in  the  dissenting  opinion  of 
Mr.  Justice  Holmes  written  in  1896. 

It  is  plain  from  the  slightest  consideration  of  practical  af¬ 
fairs,  or  the  most  superficial  reading  of  industrial  history,  that 
free  competition  means  combination,  and  that  the  organization 
of  the  world,  now  going  on  so  fast,  means  an  ever-increasing 
might  and  scope  of  combination.  It  seems  to  me  futile  to  set 
our  faces  against  this  tendency.  Whether  beneficial  on  the 
whole,  as  I  think  it,  or  detrimental,  it  is  inevitable,  unless  the 
fundamental  axioms  of  society,  and  even  the  fundamental 
conditions  of  life,  are  to  be  changed. 

One  of  the  eternal  conflicts  out  of  which  life  is  made  up  is 
that  between  the  effort  of  every  man  to  get  the  most  he  can 
for  his  services,  and  that  of  society,  disguised  under  the  name 
of  capital,  to  get  his  services  for  the  least  possible  return. 
Combination  on  the  one  side  is  patent  and  powerful.  Combi¬ 
nation  on  the  other  is  the  necessary  and  desirable  counterpart, 
if  the  battle  is  to  be  carried  on  in  a  fair  and  equal  way.  (Vege- 
lahn  v.  Guntner.) 

Other  quotations  might  be  added  to  show  the  acceptance 
by  judges  of  the  view  that  combination  is  one  of  the  great 
facts  of  our  industry  and  that  combinations  of  labor  are 
but  one  phase  of  the  general  movement. 

Judge  Sheldon,  in  the  Willcut  case,  writes: 

Gloomy  vaticinations  of  injurious  results  to  be  apprehended 
from  the  excessive  power  which  labor  unions  may  acquire  by 
their  combination  of  many  individuals  into  one  body  do  not 
greatly  impress  us.  The  power  of  capital  hitherto  has  not 
been  found  insufficient  to  prevent  other  than  proper  advan- 


UNIONISM 


141 

tages  from  being  gained  by  the  representatives  of  labor,  nor 
does  it  seem  to  us  likely  to  be  insufficient  in  the  future.  If 
it  shall  appear  that  there  is  such  a  danger,  yet  we  cannot  alter 
the  law  by  denying  to  labor  unions  the  rights  and  powers 
which  the  law  gives  to  all  lawful  associations. 

This  statement  was  made  in  a  dissenting  opinion.  The  pre¬ 
vailing  opinion  in  the  same  case,  however,  recognizes  the 
same,  in  the  following  words :  “  A  combination  among  per¬ 
sons  merely  to  regulate  their  own  conduct  is  within  allow¬ 
able  competition,  and  is  lawful,  although  others  may  be 
indirectly  affected  thereby.”  Both  of  these  statements  from 
the  prevailing  and  the  dissenting  opinions  were  later  cited 
and  adopted  by  District  Judge  Adams  in  a  prevailing  opin¬ 
ion  in  the  circuit  court  (Wabash  R.  R.  Co.  v.  Hannahan). 
After  quoting  from  these  authorities  Judge  Adams  con¬ 
cludes  :  “  I  might  continue  at  length  in  the  citation  of  cases 
stating  or  illustrating  the  foregoing  propositions,  but 
enough  has  been  said  to  clearly  indicate  the  general  rule, 
.  .  .  in  like  manner  as  capital  is  combined  for  legitimate 
purposes,  so  labor  may  combine  for  legitimate  purposes.” 

It  must  not  be  inferred,  from  the  foregoing  statements 
however,  that  these  judicial  views  are  unqualified.  They 
are  modified  in  very  important  particulars.  The  mere  fact 
of  organization  is  of  course  not  of  primary  importance  in 
itself.  Even  without  going  so  far  as  to  indicate  that  the 
particular  means  used  to  accomplish  purposes  are  not  to  be 
overlooked,  nearly  every  general  statement  that  endorses 
the  association  qualifies  the  endorsement.  In  the  quotation 
above  cited  Judge  Taft  found  the  defendant  guilty  of  the 
charge,  though  he  was  a  regularly-recognized  officer  of  the 
union.  The  purposes  of  the  strike  were  not  lawful  and  so 
the  actions  in  seeking  to  accomplish  those  purposes  were 
of  course  not  lawful.  A  few  brief  statements  from  the 


142 


AMERICAN  COURTS  IN  LABOR  CASES 


opinions  will  serve  to  show  the  nature  of  these  more  general 
qualifications.  Judge  Adams  limits  his  statements  just 
quoted. 

In  like  manner,  as  capital  is  combined  for  legitimate  pur¬ 
poses,  so  labor  may  combine  for  legitimate  purposes,  but  this 
right  of  combination,  and  the  resulting  right  to  strike  or  quit 
their  employment,  is  a  weapon  for  the  defense  and  protection 
of  employees,  and  not  a  weapon  of  attack.  They  may,  by 
peaceful  and  lawful  combination  and  concert  of  action,  be 
able  to  so  control  the  supply  of  labor  as  to  compel  the  em¬ 
ployer  to  come  to  their  terms,  but  they  are  not  at  liberty  to 
make  use  of  this  weapon  to  otherwise  interfere  with  or  injure 
the  employer  or  co-employee.  (Wabash  Railroad  Co.  v.  Han- 
nahan. ) 

"  Confined  to  proper  limits,"  says  Judge  Mitchell, 

both  as  to  end  and  means,  they  [the  unions]  are  not  only  law¬ 
ful,  but  laudable.  Carried  beyond  those  limits,  they  are  liable 
to  become  dangerous  agencies  for  wrong  and  oppression.  Be¬ 
yond  what  limits  these  associations  or  combinations  cannot 
go,  without  interfering  with  the  legal  rights  of  others,  is  a 
problem  which,  in  various  phases,  the  courts  will  doubtless  be 
frequently  called  to  pass  upon.  (Bohn  Mfg.  Co.  v.  Hollis.) 

“  Organization  .  .  .  must  be  regarded  as  having  the 

sanction  of  law  when  it  is  for  such  legitimate  purposes  as 
that  of  obtaining  an  advance  in  the  rate  of  wages  or  com¬ 
pensation,  or  of  maintaining  such  rate."  This  statement  is 
followed,  in  Curran  v.  Galen,  by  the  one  quoted  above:  “  It 
is  proper  and  praiseworthy,  and  perhaps  falls  within  the 
general  view  of  human  society  which  perceives  an  under¬ 
lying  law  that  men  should  unite  to  achieve  that  which  each 
by  himself  cannot  achieve,  or  can  achieve  less  rapidly.” 
Then  the  qualification  is  made:  “  But  the  social  principle 
which  justifies  such  organizations  is  departed  from  when 


UNIONISM 


143 


they  are  so  extended  in  their  operation  as  either  to  intend 
or  to  accomplish  injury  to  others.”  “  The  law  encourages 
combination  for  good,”  says  Judge  Carpenter  of  Connecti¬ 
cut,  “  and  combinations  by  workmen  to  better  their  condi¬ 
tion  by  legitimate  and  fair  means  are  commendable,  and 
should  be  encouraged.  But  combinations  for  evil  purposes, 
whether  by  one  class  of  men  or  another,  are  detrimental  to 
the  public  weal  and  cannot  be  regarded  with  favor  by  the 
courts.”  (State  v.  Glidden.) 

In  one  instance  the  judge  in  writing  the  opinion  goes 
further  in  making  his  qualification  than  is  usual.  District 
Judge  Jackson  shows  very  clearly  his  feeling  in  the  matter, 
as  appears  in  the  following  extract  from  U.  S.  v.  Haggerty. 

While  I  recognize  the  right  for  all  laborers  to  combine  for 
the  purpose  of  protecting  all  their  lawful  rights,  I  do  not 
recognize  the  right  of  laborers  to  conspire  together  to  compel 
employees  who  are  not  dissatisfied  with  their  work  in  the 
mines  to  lay  down  their  picks  and  shovels  and  to  quit  their 
work,  without  a  just  and  proper  reason  therefor,  merely  to 
gratify  a  professional  set  of  “  agitators,  organizers,  and  walk¬ 
ing  delegates,”  who  roam  all  over  the  country  as  agents  for 
some  combination,  who  are  vampires  that  live  and  fatten  on 
the  honest  labor  of  the  coal  miners  of  the  country,  and  who 
are  busybodies  creating  dissatisfaction  amongst  a  class  of 
people  who  are  quiet,  well-disposed,  and  who  do  not  want  to 
be  disturbed  by  the  unceasing  agitation  of  this  class  of  people. 
In  the  case  we  have  under  consideration  these  defendants  are 
known  as  professional  agitators,  organizers,  and  walking  dele¬ 
gates.  They  have  nothing  in  common  with  the  people  who  are 
employed  in  the  mines  of  the  Clarksburg  Fuel  Co.  .  .  .  Their 
mission  here  is  to  foment  trouble,  create  dissatisfaction  among 
the  employees  in  coal  mines,  producing  strikes,  which  tend 
greatly  to  damage  and  injure  the  business  of  the  employers. 
.  .  .  The  right  of  a  citizen  to  labor  for  wages  that  he  is  satis¬ 
fied  with  is  a  right  protected  by  law,  and  is  entitled  to  the 


/ 


144 


AMERICAN  COURTS  IN  LABOR  CASES 


same  protection  as  free  speech  and  should  be  better  protected 
than  the  abuse  of  free  speech,  in  which  the  organizers  and 
agitators  indulge  in  trying  to  produce  strikes. 

As  to  the  attitude  of  courts  toward  organization,  so  far 
as  the  mere  existence  of  the  organization  is  concerned,  there 
can  be  no  doubt.  In  a  legal  sense  as  well  as  in  an  industrial 
sense,  it  has  come  to  stay.  Iis  legal  right  to  exist¬ 
ence  is  so  generally  taken  for  granted  that  such  expres¬ 
sions  are  becoming  less  frequent.  As  Vice  Chancellor 
Green  expresses  it: 

No  unprejudiced  person  at  this  day  wishes  to  place  any 
obstacle  in  the  way  of  labor  organizations  conducting  their 
operations  within  lawful  limits.  .  .  .  Every  one  must  acknowl¬ 
edge  that  organization  has  accomplished  much  in  the  past  for 
the  benefit  of  the  workingman,  and  recognize  its  possibilities 
to  secure  to  them,  in  the  future,  the  enjoyment  of  other  privi¬ 
leges.  (Barr  v.  Essex  Trades  Council.) 

The  same  attitude  is  again  concisely  expressed  by  Presiding 
Justice  Chipman  of  California. 

We  do  not  find  it  necessary  to  enter  upon  a  discussion  of 
the  right  of  labor  to  organize  for  mutual  benefit  and  self-pro¬ 
tection.  All  sane  thinking  persons  concede  this  right.  .  .  . 
Nor  are  we  called  upon  to  lay  down  general  rules  by  which 
labor  organizations  should  be  governed  in  their  relations  to 
the  business  interests  of  the  country  and  to  society.  (Jordahl 
v.  Hay  da.) 

With  the  right  to  form  associations  so  generally  estab¬ 
lished,  the  difficulties  are  far  from  settled.  In  fact  it  is  not 
until  this  point  is  reached  that  any  real  obstacle  arises. 
What  may  these  associations  do  and  what  may  they  not  do 
in  carrying  forward  their  purposes?  The  answers  to  these 
questions  must  be  considered  more  in  detail.  The  courts  lay 


UNIONISM 


145 


down  no  general  propositions  that  may  be  taken  as  a  final 
answer.  Each  act  in  furtherance  of  trade  union  purposes 
is  taken  by  itself  and  is  put  to  the  tests  that  exist  in  the 
already  established  general  rules  of  law.  Out  of  the  numer¬ 
ous  cases  have  appeared  the  general  principles  in  the  minds 
of  the  several  courts  toward  the  various  points.  It  is  these 
cases  that  must  be  examined  and  the  opinions  expressed  in 
connection  with  them  that  must  be  studied  in  order  to  reach 
any  general  answer  to  the  question  that  has  been  stated. 


CHAPTER  IX 


U  nionism — Legislation 

Among  the  numerous  plans  devised  by  labor  leaders  to 
secure  advantage  to  their  organizations  one  that  seemed  at 
first  most  promising  was  legislation.  Through  their  regu¬ 
larly-organized  means  of  appealing  to  state  legislatures, 
laws  were  secured  in  several  states  intended  to  help  the 
union  man  against  the  employer  and  the  non-unionist.  The 
legislation  thus  secured  was  substantially  uniform.  It  made 
it  a  misdemeanor  for  an  employer  to  discharge  an  employee 
because  he  was,  or  was  about  to  become,  a  member  of  a 
labor  union.  In  one  instance  a  law  was  passed  forbidding 
an  employer  to  compel  an  employee  to  agree  not  to  join  a 
union  as  a  condition  of  employment.  These  laws  were 
soon  brought  before  the  courts  of  the  several  states  and  the 
United  States  supreme  court  for  adjudication.  There  is 
no  difference  in  the  conclusions  reached  by  the  courts  in 
reference  to  this  issue.  Some  dissenting  opinions  were 
written,  however,  and  the  views  expressed  in  these  are 
both  interesting  and  important. 

The  line  of  argument  adopted  in  the  majority  opinions 
is  in  the  main  the  same,  though  some  are  much  more  fully 
elaborated.  Its  most  concise  and  direct  expression  is  per¬ 
haps  that  written  by  Judge  Magruder  of  Illinois. 

One  citizen  cannot  be  compelled  to  give  employment  to  an¬ 
other  citizen,  nor  can  any  one  be  compelled  to  be  employed 
against  his  will.  The  act  of  1893,  now  under  consideration, 
146 


UNIONISM— LEGISLA  TION 


14  7 


deprives  the  employer  of  the  right  to  terminate  his  contract 
with  his  employee.  The  right  to  terminate  such  a  contract  is 
guaranteed  by  the  organic  law  of  the  state.  The  legislature  is 
forbidden  to  deprive  the  employer  or  employee  of  the  exer¬ 
cise  of  that  right.  The  legislature  has  no  authority  to  pro¬ 
nounce  the  performance  of  an  innocent  act  criminal,  when  the 
public  health,  safety,  comfort,  or  welfare  is  not  interfered 
with.  The  statute  in  question  says  that,  if  a  man  exercises  his 
constitutional  right  to  terminate  a  contract  with  his  employee, 
he  shall,  without  a  hearing,  be  punished  as  for  the  commis¬ 
sion  of  a  crime.  .  .  .  Liberty  includes  not  only  the  right  to 
labor,  but  to  refuse  to  labor,  and  consequently  the  right  to 
contract  to  labor  or  for  labor,  and  to  terminate  such  con¬ 
tracts,  and  to  refuse  to  make  such  contracts.  (Gillespie  v. 
People.) 

That  such  legislation  as  this  is  in  violation  of  the  right 
of  contract,  and  that  the  right  of  contract  is  a  constitutional 
right,  is  forcibly  set  forth  by  Judge  Sherwood  of  Missouri. 
This  opinion  was  the  earliest  of  the  important  ones,  being 
handed  down  in  1895. 

These  terms,  “  life,”  “  liberty,”  and  “  property,”  are  repre¬ 
sentative  terms,  and  cover  every  right  to  which  a  member  of 
the  body  politic  is  entitled  under  the  law.  Within  their  com¬ 
prehensive  scope  are  embraced  .  .  .  the  right  to  buy  and  sell 
as  others  may — all  our  liberties,  personal,  civil  and  political 
— in  short,  all  that  makes  life  worth  living;  and  of  none  of 
these  liberties  can  any  one  be  deprived  except  by  due  process 
of  law.  Now,  as  before  stated,  each  of  these  rights  hereto¬ 
fore  mentioned  carries  with  it,  as  its  natural  and  necessary 
coincident,  all  that  effectuates  and  renders  complete  the  full, 
unrestrained  enjoyment  of  that  right.  Take,  for  instance, 
that  of  property.  Necessarily  blended  with  that  right  are 
those  of  acquiring  property  by  labor,  by  contract,  and  also  of 
terminating  that  contract  at  pleasure,  being  liable,  however, 
civilly  for  any  unwarranted  termination.  .  .  . 


AMERICAN  COURTS  IN  LABOR  CASES 


148 

Here,  the  law  under  review  declares  that  to  be  a  crime  which 
consists  alone  in  the  exercise  of  a  constitutional  right,  to  wit, 
that  of  terminating  a  contract — one  of  the  essential  attributes 
of  property,  indeed  property  itself,  under  preceding  defini¬ 
tions.  Brought  to  the  bar  of  a  court  on  such  a  charge,  the 
accused  would  have  been  prejudged  in  so  far  as  the  criminality 
of  the  act  charged  is  concerned.  No  question  could  there  be 
made  or  admitted  as  to  the  quality  of  the  act.  That  would 
have  been  settled  by  the  previous  legislative  declaration,  and 
it  would  only  remain  to  find  the  fact  as  charged  in  order  to 
declare  the  guilt  as  charged.  But  the  fact  as  charged,  as  al¬ 
ready  seen,  is  not  a  crime,  and  will  not  be  a  crime  so  long  as 
constitutional  guaranties  and  constitutional  prohibitions  are 
respected  and  enforced.  If  an  owner,  etc.,  obeys  the  law  on 
which  this  prosecution  rests,  he  is  thereby  deprived  of  a  right 
and  a  liberty  to  contract  or  terminate  a  contract,  as  all  others 
may;  if  he  disobeys  it,  then  he  is  punished  for  the  performance 
of  an  act  wholly  innocent,  unless,  indeed,  the  doing  of  such 
act,  guaranteed  by  the  organic  law — the  exercise  of  a  right  of 
which  the  legislature  is  forbidden  to  deprive  him — can  by  that 
body  be  conclusively  pronounced  criminal.  We  deny  the 
power  of  the  legislature  to  do  this,  to  brand  as  an  offense  that 
which  the  constitution  designates  and  declares  to  be  a  right, 
and  therefore  an  innocent  act ;  and  consequently  we  hold  that 
the  statute  which  professes  to  exert  such  a  power  is  nothing 
more  nor  less  than  a  “  legislative  judgment,”  and  an  attempt 
to  deprive  all  who  are  included  within  its  terms  of  a  consti¬ 
tutional  right  without  due  process  of  law.  (State  v.  Julow.) 

The  most  elaborate  opinion  of  this  series  comes  from 
the  Wisconsin  court.  It  was  written  by  Judge  Dodge.  Of 
this  opinion  as  a  whole  it  has  been  said  from  the  United 
States  circuit  court  (Union  Pacific  v.  Ruef)  ; 

As  to  what  the  rights  of  property  mean,  and  of  what  liberty 
of  contract  consists,  of  all  that  has  been  written  upon  these 
all-important  and  most  vital  questions  there  is  no  paper  of 


UNIONISM— LEGISLA  TION 


149 


greater  ability,  evidencing  more  learning,  than  the  very  recent 
opinion  of  the  supreme  court  of  Wisconsin  in  the  case  of  State 
v.  Kreutzberg. 

The  case  cannot  be  here  quoted  in  full,  but  extensive  cita¬ 
tions  from  it  should  be  made : 

However  well  established  that  the  words  “  liberty  ”  and 
“  pursuit  of  happiness  ”  include  the  right  of  private  contract, 
so  that  a  deprivation  of  the  latter  is  a  deprivation  of  each  of 
the  former,  yet  the  far  more  difficult  question  remains 
whether  any  given  statute  constitutes  a  forbidden  depriva¬ 
tion.  .  .  . 

Free  will  in  making  private  contracts,  and  even  in  greater 
degree  in  refusing  to  make  them,  is  one  of  the  most  important 
and  sacred  of  the  individual  rights  intended  to  be  protected. 
That  the  present  act  curtails  it  directly,  seriously,  and  prejudi¬ 
cially,  cannot  be  doubted.  The  success  in  life  of  the  employer 
depends  on  the  efficiency,  fidelity,  and  loyalty  of  his  em¬ 
ployees.  Without  enlarging  upon  or  debating  the  relative  ad¬ 
vantages  or  disadvantages  of  the  labor  union,  either  to  its 
members  or  to  the  community  at  large,  it  is  axiomatic  that  an 
employer  cannot  have  undivided  fidelity,  loyalty,  and  devotion 
to  his  interests  from  an  employee  who  has  given  to  an  asso¬ 
ciation  right  to  control  his  conduct.  He  may  by  its  decisions 
be  required  to  limit  the  amount  of  his  daily  product.  He  may 
be  restrained  from  teaching  his  art  to  others.  He  may  be 
forbidden  to  work  in  association  with  other  men  whose  ser¬ 
vice  the  employer  desires.  He  may  not  be  at  liberty  to  work 
with  such  machines  or  upon  such  materials  or  products  as 
the  employer  deems  essential  to  his  success.  In  all  these 
respects  he  may  be  disabled  from  the  full  degree  of  useful¬ 
ness  attributable  to  the  same  abilities  in  another  who  had  not 
yielded  up  to  an  association  any  right  to  restrain  his  freedom 
of  will  and  exertion  in  his  employer’s  behalf  according  to  the 
latter’s  wishes.  Such  considerations  an  employer  has  a  right 
to  deem  valid  reasons  for  preferring  not  to  jeopardize  his 


AMERICAN  COURTS  IN  LABOR  CASES 


150 

success  by  employing  members  of  organizations.  A  man  who 
has  by  agreement  or  otherwise  shackled  any  of  his  faculties — 
even  his  freedom  of  will — may  well  be  considered  less  useful 
or  less  desirable  by  some  employers  than  if  free  and  untram¬ 
meled.  Whether  the  workman  can  find  in  his  membership  in 
such  organizations  advantages  and  compensations  to  offset  his 
lessened  desirability  in  the  industrial  market  is  a  question 
each  must  decide  for  himself.  His  right  to  freedom  in  so 
doing  is  of  the  same  grade  and  sacredness  as  that  of  the  em¬ 
ployer  to  consent  or  refuse  to  employ  him  according  to  the 
decision  he  makes.  We  must  not  forget  that  our  government 
is  founded  on  the  idea  of  equality  of  all  individuals  before  the 
law.  Such  restraints  as  may  be  placed  on  one  may  be  placed 
on  another.  If  the  liberty  of  the  employer  to  contract  or  re¬ 
fuse  to  contract  may  be  denied,  so  may  that  of  the  employee. 
In  answering  the  question  now  before  us,  we  may  not  forget 
the  possibility  of  being  called  on  to  answer  whether  the  legis¬ 
lature  may  make  a  criminal  of  the  employee  who  quits,  for  ex¬ 
ample,  because  his  employer  joins  a  blacklisting  association; 
because  non-union  men  or  members  of  some  other  union  are 
employed,  or  non-union  or  forbidden  machines  or  materials 
are  used ;  because  of  an  obnoxious  foreman ;  because  excessive 
hours  of  work  are  required ;  because  compelled  to  trade  at 
employer’s  store  or  board  at  his  boarding  house ;  or  because  of 
any  other  fact  or  conduct  now  considered  entirely  adequate 
reason  for  refusing  or  leaving  a  particular  service.  It  must 
not  be  forgotten,  if,  as  counsel  for  the  state  argues,  the  laborer 
is  too  weak  to  meet  the  employer  on  equal  terms  in  the  field 
of  contract,  that  he  will  be  far  more  subject  to  the  latter’s 
control  and  oppression  in  the  field  of  politics,  and  that  laws 
of  the  above  character  will  surely  come,  if  within  the  proper 
province  of  the  legislature,  unless,  as  we  have  faith  to  believe, 
the  character  and  the  individuality  of  the  wage  earners  of  the 
country  are  sufficient  to  maintain  their  independence — both 
contractual  and  political — in  a  field  of  equal  rights  under  the 
law,  and  of  full  liberty  to  each  to  sell  and  buy  labor  to  and 
from  whom  he  will.  .  .  . 


UNIONISM— LEGISLA  TION 


151 

In  considering  our  own  statute  under  which  relator  is  com¬ 
mitted,  it  must  first  be  noted  that  we  are  concerned  only  with 
that  portion  added  to  pre-existing  statutes  (section  4466b, 
Rev.  St.,  1898)  by  the  act  of  1890:  “  No  person  or  corpora¬ 
tion  shall  discharge  an  employee  because  he  is  a  member  of 
any  labor  organization,”  for  the  relator  is  not  charged  with 
breach  of  any  other  of  the  provisions  of  that  act.  Confining 
ourselves,  then,  to  the  act  so  charged,  and  the  statutory  pro¬ 
hibition  involved,  is  it  within  the  legislative  power  to  make 
criminal  the  refusal  to  contract  with  another  for  his  labor  for 
any  reason  which  the  employer  deems  cogent?  We  speak  of 
refusal  to  contract,  for,  while  the  act  mentions  only  discharge, 
it  is  in  no  wise  limited  to  situations  where  there  is  any  con¬ 
tract  or  other  right  to  continuance  of  employment,  and  is  ob¬ 
viously  intended  by  the  framers  to  apply  generally  to  the  rela¬ 
tion  of  employer  and  employee,  where,  as  common  knowledge 
assures  us,  there  is  usually  no  term  of  employment,  and  each 
day  constitutes  a  new  contract.  As  each  morning  comes,  the 
employee  is  free  to  decide  not  to  work,  the  employer  to  decide 
not  to  receive  him,  but  for  this  statute.  That  the  act  in  ques¬ 
tion  invades  the  liberty  of  the  employer  in  an  extreme  degree, 
and  in  a  respect  entitled  to  be  held  sacred,  except  for  the 
most  cogent  and  urgent  countervailing  considerations,  we  have 
pointed  out.  Hardly  any  of  the  personal  civil  rights  is  higher 
than  that  of  free  will  in  forming  and  continuing  the  relation 
of  master  and  servant.  If  that  may  be  denied  by  law,  the  re¬ 
sult  is  legalized  thralldom,  not  liberty — certainly  not  to  the 
laboring  men  of  the  country.  This  aspect  of  the  subject  is 
too  clear  to  warrant  further  discussion. 

The  most  authoritative  opinion  is  that  of  the  United 
States  supreme  court  written  in  1908  by  Justice  Harlan 
(Adair  v.  U.  S.).  The  case  dealt  specifically  with  a  federal 
law  making  it  unlawful  for  an  officer  of  an  interstate  carrier 
to  discharge  an  employee  because  of  his  membership  in  a 
labor  union.  Though  dealing  with  interstate  commerce 


152 


AMERICAN  COURTS  IN  LABOR  CASES 


primarily,  the  opinion  deals  in  such  a  way  with  the  prin¬ 
ciples  involved  as  to  make  it  of  wide  importance.  After 
having  studied  the  question  “  with  care  and  deliberation,” 
as  “  admittedly  one  of  importance,”  the  court  “  reached  a 
conclusion  which,  in  its  judgment,  is  consistent  with  both 
the  words  and  spirit  of  the  Constitution,  and  is  sustained 
as  well  by  sound  reason.”  The  section  is  “  in  our  opinion 
an  invasion  of  the  personal  liberty,  as  well  as  of  the  right 
of  property  guaranteed  by  the  (Fifth)  Amendment.” 

It  is  sufficient  in  this  case  to  say  that,  as  agent  of  the  rail¬ 
road  company,  and,  as  such,  responsible  for  the  conduct  of 
the  business  of  one  of  its  departments,  it  was  the  defendant 
Adair’s  right — and  that  right  inhered  in  his  personal  liberty, 
and  was  also  a  right  of  property — to  serve  his  employer  as 
best  he  could,  so  long  as  he  did  nothing  that  was  reasonably 
forbidden  by  law  as  injurious  to  the  public  interests.  It  was 
the  right  of  the  defendant  to  prescribe  the  terms  upon  which 
the  services  of  Coppage  would  be  accepted,  and  it  was  the 
right  of  Coppage  to  become  or  not,  as  he  chose,  an  employee 
of  the  railroad  company  upon  the  terms  offered  to  him.  Mr. 
Cooley,  in  his  treatise  on  Torts,  p.  278,  well  says:  “It  is  a 
part  of  every  man’s  civil  rights  that  he  be  left  at  liberty  to 
refuse  business  relations  with  any  person  whomsoever, 
whether  the  refusal  rests  upon  reason,  or  is  the  result  of 
whim,  caprice,  prejudice  or  malice.  With  his  reasons  neither 
the  public  nor  third  persons  have  any  legal  concern.  It  is 
also  his  right  to  have  business  relations  with  anyone  with 
whom  he  can  make  contracts,  and,  if  he  is  wrongfully  de¬ 
prived  of  this  right  by  others,  he  is  entitled  to  redress.”  .  .  . 

While,  as  already  suggested,  the  right  of  liberty  and  prop- 
erty  guaranteed  by  the  Constitution  against  deprivation  with¬ 
out  due  process  of  law  is  subject  to  such  reasonable  restraints 
as  the  common  good  or  the  general  welfare  may  require,  it  is 
not  within  the  functions  of  government — at  least,  in  the  ab¬ 
sence  of  contract  between  the  parties — to  compel  any  person, 


UNIONISM—. LEGISLA  TION 


I53 


in  the  course  of  his  business  and  against  his  will,  to  accept  or 
retain  the  personal  services  of  another,  or  to  compel  any  per¬ 
son,  against  his  will,  to  perform  personal  services  for  another. 
The  right  of  a  person  to  sell  his  labor  upon  such  terms  as  he 
deems  proper  is,  in  its  essence,  the  same  as  the  right  of  the 
purchaser  of  labor  to  prescribe  the  conditions  upon  which  he 
will  accept  such  labor  from  the  person  offering  to  sell  it.  So 
the  right  of  the  employee  to  quit  the  service  of  the  employer, 
for  whatever  reason,  is  the  same  as  the  right  of  the  employer, 
for  whatever  reason,  to  dispense  with  the  services  of  such  em¬ 
ployee.  It  was  the  legal  right  of  the  defendant,  Adair — how¬ 
ever  unwise  such  a  course  might  have  been — to  discharge  Cop- 
page  because  of  his  being  a  member  of  a  labor  organization, 
as  it  was  the  legal  right  of  Coppage,  if  he  saw  fit  to  do  so — 
however  unwise  such  a  course  on  his  part  might  have  been— 
to  quit  the  service  in  which  he  was  engaged,  because  the  de¬ 
fendant  employed  some  persons  who  were  not  members  of  a 
labor  organization.  In  all  such  particulars  the  employer  and 
employee  have  equality  of  right,  and  any  legislation  that  dis¬ 
turbs  that  equality  is  an  arbitrary  interference  with  the  liberty 
of  contract  which  no  government  can  legally  justify  in  a  free 
land.  ...  In  the  absence,  however,  of  a  valid  contract  be¬ 
tween  the  parties  controlling  their  conduct  towards  each  other 
and  fixing  a  period  of  service,  it  cannot  be,  we  repeat,  that  an 
employer  is  under  any  legal  obligation,  against  his  will,  to  re¬ 
tain  an  employee  in  his  personal  service  any  more  than  an 
employee  can  be  compelled,  against  his  will,  to  remain  in  the 
personal  service  of  another.  So  far  as  this  record  discloses 
the  facts  the  defendant,  who  seemed  to  have  authority  in  the 
premises,  did  not  agree  to  keep  Coppage  in  service  for  any 
particular  time,  nor  did  Coppage  agree  to  remain  in  such  ser¬ 
vice  a  moment  longer  than  he  chose.  The  latter  was  at  liberty 
to  quit  the  service  without  assigning  any  reason  for  his  leav¬ 
ing.  And  the  defendant  was  at  liberty,  in  his  discretion,  to 
discharge  Coppage  from  service  without  giving  any  reason  for 
so  doing. 

As  the  relations  and  the  conduct  of  the  parties  towards  w 


154 


AMERICAN  COURTS  IN  LABOR  CASES 


other  were  not  controlled  by  any  contract  other  than  a  general 
employment  on  one  side  to  accept  the  services  cf  the  employee 
and  a  general  agreement  on  the  other  side  to  render  services 
to  the  employer — no  term  being  fixed  for  the  continuance  of 
the  employment — Congress  could  not,  consistently  with  the 
Fifth  Amendment,  make  it  a  crime  against  the  United  States 
to  discharge  the  employee  because  of  his  being  a  member  of  a 
labor  organization.  .  .  . 

If  such  a  power  exists  in  Congress  it  is  difficult  to  per¬ 
ceive  why  it  might  not,  by  absolute  regulation,  require  inter¬ 
state  carriers,  under  penalties,  to  employ,  in  the  conduct  of  its 
interstate  business,  only  members  of  labor  organizations,  or 
only  those  who  are  not  members  of  such  organizations — a 
power  which  could  not  be  recognized  as  existing  under  the 
Constitution  of  the  United  States. 

In  the  case  of  the  enactment  of  a  law  forbidding  an  em¬ 
ployer  to  compel  an  employee  to  agree  not  to  join  a  union 
as  a  condition  of  employment,  the  line  of  reasoning  was 
much  the  same.  The  case  came  before  the  New  York  court 
of  appeals  as  People  v.  Marcus.  The  conclusion  was  that 
“  the  freedom  of  contract  which  entitles  an  employer  to 
make  by  agreement  his  place  of  business  wholly  within  the 
control  of  a  labor  union  entitles  him,  if  he  so  desires,  to 
require  of  his  employees  that  they  be  wholly  independent 
of  any  labor  union.” 

These  opinions  leave  no  doubt  as  to  the  views  of  the 
great  majority  of  those  judges  who  have  been  called  upon 
to  render  decisions.  The  restriction  which  the  legislation 
under  consideration  seeks  to  place  upon  the  employer  in 
favor  of  the  union  workman  is  opposed  to  individual  liberty 
and  also  to  property  rights.  In  consequence  of  these  rights 
everyone  enjoys  freedom  to  contract  with  any  one  who  is 
willing  to  enter  into  the  contract  relation.  Nor  can  the 
restriction  be  justified  as  an  excercise  of  the  police  power. 


UNIONISM — LEGISLA  TION 


155 

There  is  no  reason  in  public  policy  that  will  justify  such 
legislation. 

The  prevalence  of  this  view  is  indicated  by  the  fact  that 
courts  that  have  heard  these  cases  have  been  made  up  of  at 
least  thirty-two  judges  and  that  only  three  of  these  have 
recorded  dissenting  opinions.  The  importance  of  these  dis¬ 
sents  may  be  measured  by  noticing  the  cases.  One  was 
before  the  New  York  court  of  appeals  and  dealt  with  the 
statute  forbidding  an  employer  to  require,  as  a  condition  of 
employment,  that  a  workman  shall  agree  not  to  join  a 
union.  Justice  Bartlett  wrote  the  dissenting  opinion  in  this 
case.  The  other  was  the  case  before  the  United  States 
supreme  court  to  which  reference  has  already  been  made. 
Justices  McKenna  and  Holmes  wrote  two  dissenting  opin¬ 
ions,  which  because  of  their  position  as  federal  supreme 
court  justices  are  of  considerable  weight.  That  the  case 
dealt  specifically  with  interstate  commerce  detracts  but  little 
from  its  importance.  The  leading  principles  were  raised 
and  fully  discussed,  as  has  already  been  shown. 

Justice  Bartlett’s  view  may  be  summed  up  in  the  follow¬ 
ing  extract  taken  from  his  dissenting  opinion: 

The  freedom  of  contract  should  be  untrammeled.  A  person 
desiring  employment  ought  not  to  be  required  to  abstain  from 
joining  any  labor  organization,  nor  should  he  be  compelled  to 
join  a  labor  organization.  The  statute  should  have  covered 
both  cases.  I  regard  this  legislation  as  a  step  in  the  right  di¬ 
rection,  although  it  was  evidently  drawn  in  the  interest  of 
labor  organizations  and  without  regard  to  securing  absolute 
freedom  of  contract.  The  employer  is  to  be  protected  and  the 
employed  as  well.  I  trust  the  day  is  not  far  distant  when  to 
every  workingman  will  be  open  all  the  avenues  of  employment, 
whether  he  belongs  to  labor  unions  or  other  organizations,  or 
stands  alone  upon  his  individual  right  to  work  for  such  a  wage 
as  seems  to  him  just.  This  statute  is  not,  in  my  opinion,  un- 


AMERICAN  COURTS  IN  LABOR  CASES 


*56 

constitutional,  but  is  to  be  regarded  as  a  step  in  the  direction 
dictated  by  every  consideration  of  public  policy. 

Justice  McKenna,  in  his  opinion  enters  into  a  careful 
analysis  of  the  provisions  of  the  entire  law  of  which  the 
contested  section  was  a  part  and  insists  that  the  section  must 
be  considered  with  reference  to  the  other  sections.  The 
purpose  of  the  statute  as  a  whole  is  to  prevent  or  settle  dis¬ 
putes  between  carriers  and  their  employees.  In  the  light 
of  this  purpose  the  section  in  question  gets  its  justification. 
Liberty  is  not  entirely  free  from  restraints,  even  under  the 
Fifth  Amendment.  Some  restrictions  are  justifiable.  The 
question  then  is  whether  the  section  in  dispute 

has  relation  to  the  purpose  which  induced  the  act,  and  which 
it  was  enacted  to  accomplish,  and  whether  such  purpose  is  in 
aid  of  interstate  commerce,  and  not  a  mere  restriction  upon 
the  liberty  of  carriers  to  employ  whom  they  please  or  to  have 
business  relations  with  whom  they  please. 

The  purpose  of  the  act  is  to  be  approved,  and  in  its  efforts 
to  attain  this  purpose  “  the  congressional  judgment  of 
means  should  not  be  brought  under  a  rigid  limitation.”  If 
labor  associations  are  to  be  commended.  Congress  certainly 
may  recognize  their  existence  and  their  power  “  as  condi¬ 
tions  to  be  counted  with  in  framing  its  legislation.”  The 
justification  of  Congress  in  its  efforts  to  accomplish  its  pur¬ 
pose  is  evident  in  the  events  of  1894.  The  law  of  1888 

did  not  recognize  labor  associations  or  distinguish  between 
the  members  of  such  associations  and  the  other  employees  of 
carriers.  It  failed  in  its  purpose,  whether  from  defect  in  its 
provisions  or  other  cause,  we  may  only  conjecture.  At  any 
rate  it  did  not  avert  the  strike  of  1894.  Investigation  fol¬ 
lowed,  and,  as  a  result  of  it,  the  act  of  1898  was  finally  passed. 
Presumably  its  provisions  and  remedy  were  addressed  to  the 


UNIONISM— LEGISLA  TION 


157 


mischief  which  the  act  of  1888  failed  to  reach  or  avert.  It 
was  the  judgment  of  Congress  that  the  scheme  of  arbitration 
might  be  helped  by  engaging  in  it  the  labor  associations. 

The  final  conclusion  of  the  opinion  is  that  if  the  disputed 
section  is  to  be  stricken  from  the  law,  the  law  is  made  in¬ 
effective  in  accomplishing  its  purpose. 

Justice  Holmes  bases  his  dissent  upon  the  following 
considerations : 

As  we  all  know,  there  are  special  labor  unions  of  men  en¬ 
gaged  in  the  service  of  carriers.  These  unions  exercise  a  di¬ 
rect  influence  upon  the  employment  of  labor  in  that  business, 
upon  the  terms  of  such  employment,  and  upon  the  business 
itself.  Their  very  existence  is  directed  specifically  to  the  busi¬ 
ness,  and  their  connection  with  it  is,  at  least,  as  intimate  and 
important  as  that  of  safety  couplers,  and,  I  should  think,  as 
the  liability  of  master  to  servant — matters  which,  it  is  ad¬ 
mitted,  Congress  might  regulate,  so  far  as  they  concern  com¬ 
merce  among  the  states.  I  suppose  that  it  hardly  would  be 
denied  that  some  of  the  relations  of  railroads  with  unions  of 
railroad  employees  are  closely  enough  connected  with  com¬ 
merce  to  justify  legislation  by  Congress.  If  so,  legislation  to 
prevent  the  exclusion  of  such  unions  from  employment  is 
sufficiently  near. 

The  ground  on  which  this  particular  law  is  held  bad  is  not 
so  much  that  it  deals  with  matters  remote  fiom  commerce 
among  the  states,  as  that  it  interferes  with  the  paramount  in¬ 
dividual  rights  secured  by  the  Fifth  Amendment.  The  section 
is,  in  substance,  a  very  limited  interference  with  freedom  of 
contract,  no  more.  It  does  not  require  the  carriers  to  employ 
anyone.  It  does  not  forbid  them  to  refuse  to  employ  anyone, 
for  any  reason  they  deem  good,  even  where  the  notion  of  a 
choice  of  persons  is  a  fiction  and  wholesale  employment  is 
necessary  upon  general  principles  that  it  might  be  proper  to 
control.  The  section  simply  prohibits  the  more  powerful  party 
to  exact  certain  undertakings,  or  to  threaten  dismissal  or  un- 


AMERICAN  COURTS  IN  LABOR  CASES 


158 

justly  discriminate  on  certain  grounds  against  those  already 
employed.  I  hardly  can  suppose  that  the  grounds  on  which  a 
contract  lawfully  may  be  made  to  end  are  less  open  to  regula¬ 
tion  than  other  terms.  So  I  turn  to  the  general  question 
whether  the  employment  can  be  regulated  at  all.  I  confess 
that  I  think  that  the  right  to  make  contracts  at  will  that  has 
been  derived  from  the  word  “  liberty  ”  in  the  Amendments 
has  been  stretched  to  its  extreme  by  the  decisions ;  but  they 
agree  that  sometimes  the  right  may  be  restrained.  Where 
there  is,  or  generally  is  believed  to  be,  an  important  ground  of 
public  policy  for  restraint,  the  Constitution  does  not  forbid  it, 
whether  this  court  agrees  or  disagrees  with  the  policy  pur¬ 
sued.  It  cannot  be  doubted  that  to  prevent  strikes,  and,  so 
far  as  possible,  to  foster  its  scheme  of  arbitration,  might  be 
deemed  by  Congress  an  important  point  of  policy,  and  I  think 
it  impossible  to  say  that  Congress  might  not  reasonably  thinx 
that  the  provision  in  question  would  help  a  good  deal  to  carry 
its  policy  along.  But  suppose  the  only  effect  really  were  to 
tend  to  bring  about  the  complete  unionizing  of  such  railroad 
laborers  as  Congress  can  deal  with,  I  think  that  object  alone 
would  justify  the  act.  I  quite  agree  that  the  question  what 
and  how  much  good  labor  unions  do,  is  one  on  which  intelli¬ 
gent  people  may  differ ;  I  think  that  laboring  men  sometimes 
attribute  to  them  advantages,  as  many  attribute  to  combina¬ 
tions  of  capital  disadvantages,  that  really  are  due  to  economic 
conditions  of  a  far  wider  and  deeper  kind ;  but  I  could  not 
pronounce  it  unwarranted  if  Congress  should  decide  that  to 
foster  a  strong  union  was  for  the  best  interest,  not  only  of 
the  men,  but  of  the  railroads  and  the  country  at  large. 

While  the  unconstitutionality  of  laws  to  prevent  the  dis¬ 
charge  of  men  because  of  their  membership  in  unions  can¬ 
not  be  doubted,  yet  the  principles  underlying  the  dissenting 
opinions  are  of  interest.  They  suggest  the  question,  whether 
in  spite  of  the  almost  unanimous  agreement  there  are  not 
signs  of  the  beginning  of  a  modification,  if  not  a  change,  in 
the  view.  The  majority  opinion  is  based  on  the  long-estab- 


UNIONISM— LEGISLA  TION 


159 


lished  and  widely-accepted  understanding  of  freedom  of 
contract.  This  is  inherited  from  an  earlier  individualist 
period.  Is  that  understanding  formed  in  that  earlier  period 
to  pass  unmodified  into  our  modern  view  of  socialized  in¬ 
dustry  ?  The  extracts  above  quoted  reveal  clearly  the  origin 
of  the  view  held  by  the  majority  of  the  judges.  Do  the  dis¬ 
senting  opinions  show  the  entrance  of  a  new  view  ? 

Mr.  Justice  Knowlton,  of  the  Massachusetts  court,  in  a 
prevailing  opinion,  held  such  a  law  to  be  as  unreasonable 
as  would  be  a  law  which  would  prohibit  the  coercion  of  a 
person  into  joining  a  labor  organization  as  a  condition  of 
employment,  the  two  alike  being  a  violation  of  freedom  of 
contract.  (Berry  v.  Donovan.)  Mr.  Justice  Bartlett,  of 
the  New  York  court,  in  his  dissenting  opinion,  at  the  outset 
declares  positively  in  favor  of  freedom  of  contract.  He 
then  maintains  that  “  a  person  desiring  employment  ought 
not  to  be  required  to  abstain  from  joining  any  labor  or¬ 
ganization,  nor  should  he  be  compelled  to  join  a  labor  or¬ 
ganization.  The  statute  should  have  covered  both  cases.” 
Yet  he  declares  that  he  regards  the  legislation  “  as  a  step 
in  the  right  direction  ”  and  concludes  that  the  statute  is  not 
unconstitutional  “  but  is  to  be  regarded  as  a  step  in  the 
direction  dictated  by  every  consideration  of  public  policy.” 

Both  are  thus  insistent  upon  freedom  of  contract.  In  the 
one  case  it  is  to  be  preserved  through  non-interference. 
Legislation  forbidding  an  employer  to  require  an  employee 
either  to  join  or  not  to  join  a  union  is  an  infringement  of 
contractual  freedom.  This  is  the  older  view.  It  is  also  one 
that  considers  principally  the  position  of  the  employer  and 
his  right  to  contract  with  whomever  he  may  choose.  In  the 
other  case  freedom  of  contract  is  to  be  preserved,  but  by 
a  different  method — that  of  legal  enactment.  Legislation 
declaring  that  an  employer  shall  not  discharge  an  employee 
because  of  either  membership  or  non-membership  in  a  union 


!6c  AMERICAN  COURTS  IN  LABOR  CASES 

should  be  held  as  no  infringement  upon  contractual  free¬ 
dom  but  rather  as  a  protection  to  such  freedom.  This  is 
the  newer  view.  It  is  also  one  that  considers  the  position 
of  the  employee  and  his  right  to  contract  with  an  employer 
for  employment  without  regard  to  his  relation  with  organ¬ 
ized  labor.  The  difference  is  a  significant  one.  The  posi¬ 
tion  of  the  employee  becomes  one  equal  in  importance  to 
that  of  the  employer. 

These  are  the  two  views  as  revealed  in  the  prevailing  and 
dissenting  opinions.  If  real  equality  before  the  law  and 
real  freedom  of  contract,  applied  equally  to  both  parties, 
lies  in  either  one  of  these  two  views  and  not  in  the  other, 
it  is  important  that  it  be  known  which  is  the  one  to  be 
chosen.  If  it  be  true  that  actual  equality  lies  in  the  minority 
view,  that  view  must  ultimately  express  itself  in  the  major¬ 
ity  opinions.  If  labor  unions  are  to  continue  to  be  recog¬ 
nized  as  legal  in  themselves,  it  is  not  easy  to  see  why  the 
employer  should  be  left  undisturbed  in  his  position  of  bar¬ 
gaining  advantage  to  dictate  whether  his  employees  should 
be  members  of  unions  or  not.  Clearly  when  one  side  has  a 
decided  advantage  in  making  a  bargain  as  the  employer 
generally  has,  it  is  not  an  exaggeration  of  terms  to  use  the 
word  “  dictate.” 

There  are  principles  in  Mr.  Justice  Holmes’s  dissenting 
opinion  that  are  also  significant.  First  is  the  fact  of  rail¬ 
roads  as  common  carriers.  Legislatures  always  exercise 
a  positive  control  over  public-service  corporations.  The 
public  interest  is  especially  concerned.  If  unions  are  in¬ 
separably  connected  with  the  activity  of  these  public-service 
corporations,  should  not  the  government  recognize  it? 
Safety  couplers,  liability  of  master  to  servant,  are  simply 
instances  of  a  large  number  of  cases  where  legislatures  now 
interfere.  It  seems  to  the  mind  of  the  justice  that  labor 
unions  may  reasonably  be  included  in  the  list. 


UNIONISM— LEGISLA  TION 


161 


But  the  second  point  is  of  greater  import.  Individual 
rights  as  secured  in  the  Fifth  Amendment  are  at  stake.  But 
who  are  the  individuals  concerned  ?  and  what  are  the  rights  ? 
The  individuals  are  employees  as  well  as  employers.  “  The 
section  simply  prohibits  the  more  powerful  party  to  exact 
certain  undertakings  or  to  threaten  dismissal  or  unjustly 
discriminate  on  certain  grounds  against  those  already  em¬ 
ployed.”  The  notion  of  a  choice  of  persons,  or  of  indi¬ 
vidual  bargaining,  is  referred  to  as  a  “  fiction,”  both  the 
fact  and  the  necessity  in  actual  industry  being  “  wholesale 
employment.”  “  This  it  might  be  proper  to  control.”  This 
is  the  practical  view  of  employment  as  it  exists.  It  throws 
altogether  a  new  light  upon  the  older  view  of  individual 
rights  in  freedom  of  contract.  What  are  the  rights?  The 
rights  of  these  individuals  are  not  passed  without  comment. 
The  right  to  make  contracts  at  will,  derived  from  the  word 
“  liberty  ”  in  the  Amendments,  has,  in  the  opinion  of  the 
justice,  been  “stretched  to  its  extreme”  by  the  decisions. 
Even  these  decisions,  however,  agree  that  sometimes  the 
right  may  be  restrained.  The  necessity  arising  out  of 
public  policy  justifies  the  restriction  and  it  is  not  for  the 
court  to  determine  the  necessity.  This  is  the  newer  view 
again  as  applied  to  unions  and  common  carriers.  If  it  is  to 
have  any  influence,  it  will  be  in  the  direction  of  bringing 
the  majority  opinions  of  the  future  more  fully  into  line 
with  the  changed  conditions  of  industry. 


CHAPTER  X 


Unionism — Closed  Shop  Contracts 

Failing  in  their  efforts  to  secure  legislation  that  would 
assist  in  strengthening  the  position  of  organized  labor,  the 
leaders  have  entered  upon  other  lines  of  activity  with  a  view 
to  accomplishing  the  same  ends.  The  courts  had  insisted 
strongly  that  freedom  of  contract  should  be  left  undisturbed. 
With  the  right  to  contract  so  jealously  guarded  this  seemed 
to  suggest  a  way  out.  Contracts  could  be  entered  into  with 
employers  in  which  the  employers,  for  various  considera¬ 
tions,  would  agree  to  employ  only  union  men.  That  such 
contracts  have  been  made  frequently  is  a  matter  of  common 
knowledge.  In  connection  with  some  of  them  troubles 
have  arisen  and  the  courts  have  been  appealed  to.  Their 
opinions  in  such  cases  are  on  some  points  very  clear  and 
uniform.  This  uniformity  does  not,  however,  extend  to  all 
cases  nor  include  all  judges. 

A  case  of  this  kind  came  before  the  Massachusetts  court 
for  full  consideration  in  Berry  v.  Donovan,  the  opinion 
being  written  by  Chief  Justice  Knowlton.  The  agreement 
had  been  made  in  rather  elaborate  form.  The  second  clause 
was  as  follows : 

In  consideration  of  the  foregoing  valuable  privileges,  the 
employer  agrees  to  hire,  as  shoe  workers,  only  members  of  the 
Boot  and  Shoe  Workers’  Union  in  good  standing,  and  further 
agrees  not  to  retain  any  shoe  worker  in  his  employment  after 
receiving  notice  from  the  union  that  such  shoe  worker  is  ob¬ 
jectionable  to  the  union,  either  on  account  of  being  in  arrears 
162 


UNIONISM— CLOSED  SHOP  CONTRACTS  163 

for  dues,  or  disobedience  of  union  rules  or  laws,  or  from  any 
other  cause. 

In  accordance  with  this  agreement  the  plaintiff  had  been 
discharged  after  having  worked  for  nearly  four  years.  He 
brought  suit  for  damages.  The  court  recognizes  that  the 
plaintiff  was  employed  under  a  contract  that  was  terminable 
at  will.  Yet  the  agreement  with  the  employer,  thought  the 
court,  authorized  the  union  “  to  interfere  and  deprive  any 
workman  of,  his  employment  for  no  reason  whatever,  in 
the  arbitrary  exercise  of  its  power.”  These  two  points  are 
reconciled  in  the  following  manner :  “  Whatever  the  con¬ 
tracting  parties  may  do  if  no  one  but  themselves  is  con¬ 
cerned,  it  is  evident  that,  as  against  the  workman,  a  con¬ 
tract  of  this  kind  does  not  of  itself  justify  interference  with 
his  employment  by  a  third  person  who  made  the  contract 
with  his  employer.”  The  interference,  even  thougn  made 
in  accordance  with  a  contract,  is  held  by  the  court  to  be 
from  a  motive  to  injure.  This  consideration  was  decisive 
and  damages  were  awarded.  The  fact  that  the  workman 
had  been  for  some  time  in  the  employ  of  Goodrich  and 
Company  is  the  point  upon  which  the  opinion  is  made  to 
turn.  “  The  fact  that  the  plaintiff’s  contract  was  terminable 
at  will,  instead  of  ending  at  a  stated  time,  does  not  affect 
his  right  to  recover.  It  only  affects  the  amount  that  he  is 
to  receive  as  damages.”  That  the  views  expressed  in  the 
opinion  may  not  be  interpreted  too  broadly  the  concluding 
statement  places  a  limitation. 

We  hold  that  the  defendant  was  not  justified  by  the  contract 
with  Goodrich  &  Co.,  or  by  his  relations  to  the  plaintiff,  in  in¬ 
terfering  with  the  plaintiff’s  employment  under  his  contract. 
How  far  the  principles  which  we  adopt  would  apply,  under 
different  conceivable  forms  of  contract,  to  an  interference  with 
a  workman  not  engaged,  but  seeking  employment,  or  to  dif- 


AMERICAN  COURTS  IN  LABOR  CASES 


164 

ferent  methods  of  boycotting,  we  have  no  occasion  in  this  case 
to  decide. 

The  first  case  of  importance  in  New  York  state  was 
Curran  v.  Galen.  The  parties  had  agreed  that  no 
employee  should  be  allowed  to  work  for  longer  than  four 
weeks  without  becoming  a  member  of  the  union.  The  opin¬ 
ion  first  deals  in  a  more  general  way  with  the  principles 
involved. 

Public  policy  and  the  interests  of  society  favor  the  utmost 
freedom  in  the  citizen  to  pursue  his  lawful  trade  or  calling, 
and  if  the  purpose  of  an  organization  or  combination  of  work¬ 
ingmen  be  to  hamper  or  to  restrict  that  freedom,  and,  through 
contracts  or  arrangements  with  employers,  to  coerce  other 
workingmen  to  become  members  of  the  organization  and  to 
come  under  its  rules  and  conditions,  under  the  penalty  of  the 
loss  of  their  positions  and  of  deprivation  of  employment,  then 
that  purpose  seems  clearly  unlawful,  and  militates  against  the 
spirit  of  our  government  and  the  nature  of  our  institutions. 
The  effectuation  of  such  a  purpose  would  conflict  with  that 
principle  of  public  policy  which  prohibits  monopolies  and 
exclusive  privileges.  It  would  tend  to  deprive  the  public  of 
the  services  of  men  in  useful  employments  and  capacities.  It 
would,  to  use  the  language  of  Mr.  Justice  Barrett,  “  impover¬ 
ish  and  crush  a  citizen  for  no  reason  connected  in  the  slight¬ 
est  degree  with  the  advancement  of  wages  or  the  maintenance 
of  the  rate.” 

Following  this,  and  bearing  more  directly  upon  the  facts 
of  the  case,  it  is  stated  that: 

While  it  may  be  true,  as  argued,  that  the  contract  was  en¬ 
tered  into,  on  the  part  of  the  [employers],  with  the  object  of 
avoiding  disputes  and  conflicts  with  the  workingmen’s  organiza¬ 
tion,  that  feature  and  such  an  intention  cannot  aid  the  defense, 
nor  legalize  a  plan  of  compelling  workingmen  not  in  affiliation 


UNIONISM— CLOSED  SHOP  CONTRACTS 


165 

with  the  organization  to  join  it,  at  the  peril  of  being  deprived 
of  their  employment  and  of  the  means  of  making  a  livelihood. 

Before  the  next  important  case  came  to  the  New  York 
court,  that  court  handed  down  its  important  decision  and 
opinion  in  National  Protective  Association  v.  Cumming. 
This  has  by  some  been  held  to  be  a  reversal  of  the  view 
announced  in  Curran  v.  Galen.  Others  regard  these  two 
cases  as  not  at  all  at  variance.  The  minority  opinion  in 
the  more  recent  case  referred  for  its  authority  to  the  Cur¬ 
ran  case.  This  was  the  condition  when  Jacobs  v.  Cohen 
came  before  the  court  for  a  verdict  on  a  closed  shop  con¬ 
tract.  The  opinion  was  influenced  by  that  written  in  the 
Cumming  case.  The  line  of  argument  in  this  last  opinion 
is  not  elaborate.  It  may  be  summed-up  in  the  following 
extract  from  Judge  Gray’s  opinion: 

Within  even  the  view  expressed  by  the  minority  of  the 
judges  of  this  court  in  the  Cumming  case,  the  contract  in  the 
present  case  was  not  unlawful  which  the  employer  made 
with  his  workingmen.  .  .  .  This  contract  was  voluntarily  en¬ 
tered  into  by  Cohens,  and,  if  it  provided  for  the  performance 
of  the  firm’s  work  by  those  only  who  were  accredited  members 
in  good  standing  of  an  organization  of  a  class  of  workingmen 
whom  they  employed,  were  they  not  free  to  do  so?  If  they 
regarded  it  as  beneficial  for  them  to  do  so  (and  such  is  a  re¬ 
cital  of  the  contract),  does  it  lie  in  their  mouths  now  to  urge 
its  illegality?  That,  incidentally,  it  might  result  in  the  dis¬ 
charge  of  some  of  those  employed,  for  failure  to  come  into 
affiliation  with  their  fellow  workmen’s  organization,  or  that 
it  might  prevent  others  from  being  engaged  upon  the  work, 
is  neither  something  of  which  the  employers  may  complain, 
nor  something  with  which  public  policy  is  concerned. 

That  the  view  expressed  was  not  unanimously  adopted 
is  evident  from  the  dissenting  opinion  written  by  Judge 


AMERICAN  COURTS  IN  LABOR  CASES 


1 66 

Vann.  He  expressed  his  views  so  vigorously  and  the  views 
themselves  are  so  unusual  that  an  extended  extract  is  in¬ 
serted. 

The  business  affected  did  not  belong  to  the  union,  or  its 
members,  but  to  the  defendants,  who  agreed,  voluntarily,  of 
course,  to  employ  and  discharge  workmen  at  the  dictation  of 
the  union.  The  labor  department  of  the  industry  was  under 
the  control  of  the  union,  for  both  employer  and  employed,  ab¬ 
rogating  their  own  rights,  placed  themselves  under  its  com¬ 
mand  in  that  respect.  This  was  a  form  of  slavery,  even  if 
voluntarily  submitted  to;  for  whoever  controls  the  means  by 
which  a  man  lives  controls  the  man  himself.  Both  the  pro¬ 
prietors  and  the  workmen  seem  to  have  walked  under  the  yoke 
of  the  union  without  a  protest.  The  employers  could  employ 
no  one  who  was  not  a  member  of  the  union,  and  not  even 
then  unless  he  bore  its  pass  card.  They  could  have  no  appren¬ 
tices.  Even  in  an  emergency  and  with  the  consent  of  their 
workmen,  they  could  not  exceed  the  hours  of  labor  prescribed 
by  the  union.  A  baster,  however  willing,  could  not  sew  on  a 
button,  and  a  presser,  even  if  he  wanted  to,  could  not  make  a 
buttonhole.  .  .  .  Thus  master  and  men  bound  themselves  by 
these  remarkable  stipulations  made  with  a  voluntary  associa¬ 
tion,  which  had  no  pecuniary  interest  in  the  business  or  in 
the  labor  of  those  employed.  The  labor  of  the  employees  be¬ 
longed  to  themselves,  and  they  had  a  right  to  sell  it  to  whom 
they  chose  and  on  such  conditions  as  were  mutually  satis¬ 
factory.  The  business  belonged  to  the  defendants,  and  they 
had  the  right  to  employ  any  man  who  was  willing  to  work 
for  them ;  but  by  this  agreement  an  outsider  intervened,  and 
compelled  those  who  owned  the  business  and  those  who  did 
the  work  to  submit  to  its  direction.  As  was  said  by  the  court 
below,  the  will  of  the  employer  “  was  subjected  by  executory 
contract  to  an  arbitrary  domination,  which  not  only  deprived  ” 
him  “  of  all  freedom  of  action,  but  also  crushed  the  rights 
and  interests  of  all  independent  competition  in  the  field  of 
labor.”  The  manifest  purpose  of  the  contract  was  to  pre- 


UNIONISM— CLOSED  SHOP  CONTRACTS 


1 6/ 

vent  competition  and  create  a  monopoly  of  labor.  A  com¬ 
bination  of  capital,  or  labor,  or  as  in  this  case  of  both,  to  pre¬ 
vent  the  free  pursuit  of  any  lawful  business,  trade,  or  occupa¬ 
tion,  is  forbidden  both  by  statute  and  the  common  law. 

When  read  by  the  side  of  the  prevailing  opinion  the  pro¬ 
test  seems  ineffective  indeed.  There  seems  to  be  in  the  mind 
of  the  writer  of  this  dissent  a  vague  feeling  that  a  closed 
shop  is  an  injustice  to  the  non-union  workmen  and  to  the 
employer  as  well,  but  the  reasoning  by  which  the  view  is 
supported  certainly  is  not  strong. 

These  are  the  leading  cases  that  discuss  the  question 
squarely  on  its  merits.  Two  others  have  resulted  in  long 
opinions,  but  they  deal  primarily  with  the  right  of  union¬ 
ists  to  strike  for  the  purpose  of  securing  a  closed  shop 
agreement.  In  O’Brien  v.  People,  the  company  had  refused 
to  sign  such  a  contract.  The  unionists  had  stopped  work 
for  the  purpose  of  inducing  thereby  the  employer  to  accept 
the  agreement.  This  act  is  interpreted  by  the  court  as  co¬ 
ercion. 

There  can  be  no  doubt  that  any  attempt  to  coerce  [the  em¬ 
ployer]  into  signing  said  agreement  by  threats  to  order  a 
strike  was  unlawful.  It  was  violative  of  the  clear  legal  right 
of  the  company,  and  was  unjust  and  oppressive  as  to  those 
who  did  not  belong  to  the  labor  organizations. 

By  the  strike  and  its  accompanying  acts  the  unionists 
“  sought  by  threats,  intimidation,  and  violence  to  prevent 
men  and  women  from  taking  the  places  of  the  strikers.” 
Further  evidence  of  lawlessness  led  the  court  to  view  the 
entire  matter  as  one  of  unlawful  coercion. 

The  last  case  to  be  considered  under  this  topic  was  also 
a  strike,  in  this  instance  against  an  open  shop  policy  that 
the  employer  proposed  to  adopt.  (Reynolds  v.  Davis.) 
Two  opinions  were  written,  both  reaching  the  same  con- 


!68  AMERICAN  COURTS  IN  LABOR  CASES 

elusion  but  by  different  courses  of  reasoning.  Judge  Lor- 
ing’s  argument  has  to  do  largely  with  the  rights  of  unions 
.as  against  non-union  men.  This  general  subject  is  treated 
elsewhere.  Chief  Justice  Knowlton  bases  his  conclusions 
on  the  ground  that 

the  strike  was  for  a  closed  shop  in  the  sense  that  the  shop 
should  be  closed  arbitrarily  to  all  workmen  not  members  of 
the  union,  not  because  such  workmen  were  personally  objec¬ 
tionable  in  any  particular,  nor  because  there  was  not  work 
enough  for  all  the  members  of  the  union  if  non-union  men 
were  employed,  but  to  compel  all  workmen  to  join  the  union 
for  the  purpose  of  creating  a  monopoly  in  the  labor  market, 
whereby  to  be  able  to  contend  successfully  with  employers 
whenever  a  controversy  should  arise.  ...  A  strike  to  compel 
a  closed  shop,  merely  to  accomplish  such  a  purpose,  would  not 
be  justifiable  on  principles  of  competition,  either  as  against 
non-union  workmen  or  as  against  the  employer,  but  would  be 
unlawful. 

The  judical  attitude,  then,  is  not  settled  into  agreement. 
Of  course  violence  or  intimidation  will,  if  used  by  one 
party  to  secure  agreement,  free  the  other  from  the  binding 
force  of  the  contract.  There  is  uniformity  on  that  point 
worked  out  through  other  channels  and  applicable  in  all 
cases.  Coercion  aside,  there  remains  the  uncertainty  as  to 
how  the  courts  will  view  a  contract  of  this  kind.  It  may 
come  within  the  right  of  the  contracting  parties  so  long  as 
the  agreement  is  entered  upon  voluntarily.  It  may,  on  the 
other  hand,  be  viewed  as  a  monopoly  against  which  even 
the  freedom  of  contract  will  not  stand. 


CHAPTER  XI 


Unionism — Rights  of  Unions 

In  the  foregoing  pages  have  been  considered  the  strike, 
the  boycott,  the  picket  and  the  blacklist,  also  the  right  of 
organization  and  certain  policies  directly  connected  with 
such  right,  as  legislation  and  contracts  intended  to  secure 
to  the  associations  a  more  certain  existence.  There  re¬ 
main  yet  for  consideration  a  variety  of  topics  growing 
naturally  out  of  these  leading  points  of  policy  and  very  di¬ 
rectly  connected  with  them.  Though  the  legal  views  on  the 
points  already  considered  may  not  seem  so  clear  and  unani¬ 
mous  as  one  might  desire,  yet  compared  with  those  that 
are  to  follow  they  are  far  more  satisfactory. 

The  complex  interrelations  between  the  employer,  the 
non-union  employee,  the  unionist  and  the  consumer,  and  the 
relation  of  the  unionist  to  his  employer  and  to  his  union 
offer  a  situation  that  has  not  yet  been  fully  analyzed  by  our 
courts.  Indeed  many  of  the  problems  are  so  new  that 
judges  have  expressed  themselves  with  unusual  caution. 

The  extracts  that  follow  necessarily  lack  somewhat  in 
consecutiveness,  as  each  deals  with  a  particular  set  of  facts. 
Yet  a  reading  of  them  will  serve  to  reveal  the  attitude  of 
the  judges  better  than  any  attempted  summary  could  do. 

The  problems  that  arise  and  concerning  which  the  au¬ 
thorities  are  not  in  agreement  are  summed  up  by  Judge 
Goode  of  Missouri  as  three  in  number. 

The  principal  discrepancies  among  the  authorities  in  cases 
like  this  are:  (a)  As  to  what  means  may  lawfully  be  used 

169 


AMERICAN  COURTS  IN  LABOR  CASES 


170 

by  a  collection  or  order  of  workmen  to  cause  the  discharge 
of  other  workmen ;  but  most  courts  hold  the  means  must  not 
pass  beyond  persuasion,  and  take  on  a  coercive,  violent,  or 
punitive  character,  (b)  Whether  means  which  would  be  law¬ 
ful  if  used  by  an  individual  become  unlawful  and  amount  to  a 
conspiracy  when  used  in  combination,  (c)  Whether  acts 
which  might  lawfully  be  done  simply  to  further  the  welfare 
of  those  who  participate  in  them  become  unlawful  when  in¬ 
spired  by  a  malevolent  design  to  injure  obnoxious  workmen. 
(Carter  v.  Oster.) 

Judge  Halloway  of  Montana  (Lindsay  v.  Montana  F. 
of  L.)  declares  that  “  great  diversity  of  opinion  among  the 
courts  has  arisen  over  a  consideration  of  the  question : 
what  means  may  trade  unions  employ  to  further  the  ob¬ 
jects  of  their  organizations?” 

Again  the  difficulty  is  dwelt  upon  by  District  Judge 
Sanborn,  writing  from  the  circuit  court. 

The  right  to  strike  being  clear,  the  first  question  which 
comes  up  is,  how  far  may  the  union  and  its  members  go  to 
make  the  strike  effective  by  preventing  the  employer  from 
engaging  other  workmen,  so  that  he  will  eventually  be  com¬ 
pelled  to  yield  to  the  demands  of  the  strikers  ?  This  is  usually 
the  pinch  of  the  situation. 

Finally,  Judge  Loring  of  Massachusetts,  writing  in  1906, 
admits  his  perplexity  as  follows: 

In  other  words,  we  have  to  deal  with  one  of  the  great  and 
pressing  questions  growing  out  of  the  powerful  combinations, 
sometimes  of  capital  and  sometimes  of  labor,  which  have  been 
instituted  in  recent  years  where  their  actions  come  into  con¬ 
flict  with  the  interests  of  individuals.  The  combination  in 
the  case  at  bar  is  a  combination  of  workmen,  and  the  conflict 
is  between  a  labor  union  on  the  one  hand  and  several  un¬ 
organized  laborers  on  the  other  hand. 


UNIONISM— RIGHTS  OF  UNIONS 


171 

It  is  only  in  recent  years  that  these  great  and  powerful 
combinations  have  made  their  appearance,  and  the  limits  to 
which  they  may  go  in  enforcing  their  demands  are  far  from 
being  settled.  (Picket  v.  Walsh.) 

But  statements  setting  forth  the  newness  of  the  problems  in¬ 
volved  and  the  difficulty  of  settling  them  do  not  help  the  court 
materially,  for  a  decision  must  be  made  and  one  that  the 
court  is  willing  to  stand  for.  This  has  kept  the  courts  within 
very  narrow  limits  so  far  as  expression  of  principles  is  con¬ 
cerned  and  has  at  the  same  time  forced  them  back  to  fun¬ 
damental  propositions.  Much  depends,  as  will  readily  be 
seen,  upon  what  principles  are  adopted  as  fundamental  and 
what  ones  are  deemed  secondary.  The  views  may  be 
classed  roughly  as  those  favorable  to  the  unions  and  those 
unfavorable.  Of  the  first  class  are  the  following.  Judge 
Sanborn,  after  making  the  statement  that  has  just  been 
quoted,  declares  the  difficulty  of  the  problem. 

Here  is  the  point  where  two  equally  clear  and  valuable 
constitutional  rights  come  into  opposition — the  right  of  the 
workmen  to  get  as  much  as  possible  for  himself  on  the  best 
terms,  and  the  right  of  the  employer  to  use  his  capital  and 
ability  as  he  pleases  to  secure  whatever  profit  his  investment 
and  skill  may  bring.  The  legal  right  involved  is  single,  but 
asserted  by  two  independent  and  conflicting  interests,  and  the 
question  is,  which  one  must  yield  his  right  to  that  of  the  other, 
so  far  as  they  conflict. 

The  general  answer  to  this  question  is  that  neither  must  be 
permitted  to  maliciously  injure  the  other  without  just  cause 
or  excuse.  A  more  special  answer  is  that  so  long  as  each,  in 
the  conflict  between  them,  pursues  only  his  own  fair  interest 
or  advantage,  and  not  the  injury  of  the  other,  he  is  not 
liable  for  any  injury  which  is  merely  incidental.  ...  In  other 
words,  indirect  interference  by  a  labor  union  with  the  em¬ 
ployer’s  business,  not  amounting  to  coercion,  by  preventing 


172 


AMERICAN  COURTS  IN  LABOR  CASES 


him  from  getting  workmen  to  carry  on  his  shop,  is  not  unlaw¬ 
ful  so  long  as  the  combination  is  merely  taking  measures  to 
secure  its  own  legitimate  advantage  or  economic  advancement, 
although  harm  may  incidentally  result  to  the  employer.  So 
long  as  the  betterment  of  labor  conditions  is  the  main  object 
sought,  even  though  the  strikers  may  succeed  in  persuading 
all  the  available  laborers  to  join  their  union,  and  support  the 
strike,  and,  having  thus  secured  a  monopoly  of  the  labor 
market,  compel  the  employer,  after  long  struggle  and  great 
loss  of  profit,  to  yield  to  the  demands  or  go  out  of  business, 
yet  such  injuries  cannot  be  regarded  as  malicious,  or  such 
acts  as  criminal  or  unlawful,  either  at  the  common  law  or 
under  section  4466a  of  the  Wisconsin  Revised  Statutes  of 
1898. 

The  opinions  that  expressly  favor  the  union  man  in  his 
rivalry  with  the  non-union  workman  are  not  numerous. 
State  v.  Kreutzberg  has  several  times  been  referred  to  and 
quoted.  It  argues  directly  against  laws  that  forbid  the  dis¬ 
charge  of  men  because  of  their  membership  in  unions.  In 
that  opinion  views  were  expressed  in  favor  of  the  freedom 
of  the  laborer  which,  as  principles,  are  quite  as  much  on 
the  side  of  the  union  laborer  as  on  that  of  his  non-union 
rival.  Of  particular  interest  are  the  extracts  from  other 
opinions  that  are  cited  and  adopted. 

A  man’s  right  not  to  work  or  not  to  pursue  a  particular 
trade  or  calling,  or  to  determine  when  or  where  or  with  whom 
he  will  work,  is  in  law  a  right  of  precisely  the  same  nature, 
and  entitled  to  just  the  same  protection,  as  a  man’s  right  to 
trade  or  work.  (Herschell,  J.,  Allen  v.  Flood.)  It  is,  in 
my  opinion,  the  absolute  right  of  every  workman  to  exercise 
his  own  option  with  regard  to  the  persons  in  whose  society 
he  will  agree  or  continue  to  work.  (Lord  Watson,  Allen 
v.  Flood.)  Every  man  has  a  right  under  the  law,  as  be¬ 
tween  himself  and  others,  to  full  freedom  in  disposing  of  his 
own  labor  or  capital  according  to  his  own  will.  (Doremus 


UNIONISM— RIGHTS  OF  UNIONS 


I73 


v.  Hennessy.)  It  is  a  part  of  every  man’s  civil  rights 
that  he  be  left  at  liberty  to  refuse  business  relations  with 
any  person  whomsoever,  whether  the  refusal  rests  upon  rea¬ 
son,  or  is  the  result  of  whim,  caprice,  prejudice,  or  malice. 
(Judge  Cooley.)  Every  man  has  a  natural  right  to  hire  his 
services  to  any  one  he  pleases,  or  refrain  from  such  hiring; 
and  so,  likewise,  it  is  the  right  of  every  one  to  determine 
whose  services  he  will  hire.  .  .  .  Governments,  therefore,  can¬ 
not  exert  any  restraint  upon  the  actions  of  the  parties. 
(Tiedeman.) 

judge  Goode  of  Missouri  says: 

Many  decisions,  and  perhaps  the  weight  of  authority,  up¬ 
hold  the  right  of  employees,  either  individually  or  in  combin¬ 
ation,  to  quit  working  because  some  fellow  servant  is  ob¬ 
noxious  to  them  when  they  are  not  governed  by  a  contract  of 
service  of  definite  duration.  This  is  on  the  principle  that 
employees  may  choose  both  their  employer  and  their  working 
associates ;  and  it  may  well  be  that,  if  not  under  contract, 
they  may  leave  an  employment  when  they  please  for  any 
purpose  they  conceive  to  be  for  their  welfare,  or  likely  to  aid 
in  the  amelioration  of  the  lot  of  the  laboring  classes,  if  their 
conduct  is  dominated  by  such  a  motive  rather  than  by  a 
malicious  desire  to  injure  some  one  else.  In  recognition  of 
this  principle,  the  right  of  artisans  to  strike  for  an  increase 
of  wages  or  for  shorter  hours,  or  because  a  co-employee  is 
obnoxious  to  them,  has  been  often  adjudged,  though  perhaps 
it  cannot  be  said  that  the  current  of  authority  is  unbroken  in 
favor  of  the  right  to  strike  when  the  immediate  purpose  is 
to  cause  the  discharge  of  an  obnoxious  fellow  servant,  even 
though  the  ultimate  purpose  may  be  the  attainment  of  better 
economic  and  social  conditions.  (Carter  v.  Oster.) 

In  Wabash  Railroad  v.  Hannahan  there  is  brought  out 
another  phase  of  the  argument.  To  set  it  forth  in  Judge 
Adams’s  own  words : 


174 


AMERICAN  COURTS  IN  LABOR  CASES 


It  is  contended  that  the  threatened  strike  was  resorted  to 
by  the  defendants,  not  in  good  faith  to  redress  grievances  or 
secure  desired  concessions,  but  as  a  result  of  a  combination 
and  conspiracy  to  accomplish  the  ulterior  purpose  of  securing 
recognition  of  their  unions  or  brotherhoods,  as  authoritative 
agents  or  representatives  of  its  members,  in  all  their  dealings 
with  the  company,  and  also  to  unionize  the  roads  of  the 
company,  and  that  the  defendants  did  not  honestly  and  fairly 
secure  the  two-thirds  vote  of  the  brotherhood  employees  in 
favor  of  the  strike,  but  did  secure  the  same  by  coercion,  mis¬ 
representation,  and  fraud. 

An  interesting  and  able  argument  in  support  of  this  con¬ 
tention  is  drawn  from  the  provisions  of  the  constitution  and 
general  rules  of  the  two  brotherhoods  involved  in  this  litiga¬ 
tion,  whereby  it  is  made  to  appear  that  a  strike  may  be  de¬ 
clared  which  will  have  the  effect  of  forcing  the  minority  of 
the  brotherhood  members  who  vote  against  it  and  also  all 
nonunion  employees  in  service  upon  the  road  of  the  employer 
out  of  work  without  their  consent  and  even  against  their 
wishes.  Attention  is  particularly  called  to  the  situation  dis¬ 
closed  by  the  proof  in  this  cause,  that  a  large  majority  of 
complainant’s  employees  working  on  roads  east  of  the  Mis¬ 
sissippi  river,  for  whose  special  benefit  largely  the  threatened 
strike  was  intended,  voted  against  it ;  and  it  is  argued  that 
these  and  other  like  considerations  disclose  that  the  necessary 
operative  results  of  the  system  and  methods  of  the  brother¬ 
hoods  in  question  are  subversive  alike  of  the  fundamental 
rights  of  the  employer  to  manage  his  own  business,  and  of 
the  employees  to  bestow  their  labor  as  they  will. 

This  kind  of  argument  enters  deeply  into  the  domain  of 
political  science,  and  might  well  be  addressed  to  a  body  of 
constructive  statesmen  or  men  originally  contemplating  a  labor 
organization.  It  is  an  argument  that  would  be  pertinent 
against  the  organization  of  society  into  government.  The  will 
of  the  individual  must  consent  to  yield  to  the  will  of  the 
majority,  or  no  organization  either  of  society  into  govern¬ 
ment,  capital  into  combination,  or  labor  into  coalition  can  ever 


UNIONISM— RIGHTS  OF  UNIONS 


175 


be  effected.  The  individual  must  yield  in  order  that  the 
many  may  receive  a  greater  benefit.  The  right  of  labor  to 
organize  for  lawful  purposes  and  by  organic  agreement  to 
subject  the  individual  members  to  rules,  regulations,  and  con¬ 
duct  prescribed  by  the  majority  is  no  longer  an  open  question 
in  the  jurisprudence  of  this  country. 

A  case  that  comes  close  to  the  border  line  of  what  unions 
may  do  in  rivalry  with  other  workmen  is  Picket  v.  Walsh. 
The  opinion  was  written  by  Judge  Loring.  Extracts  have 
already  been  quoted  in  other  connections,  but  the  peculiar 
interest  of  the  main  point  in  the  contention  justifies  a  more 
careful  consideration  of  its  leading  principles. 

The  question  at  issue,  as  stated  in  the  opinion,  is  this : 

Is  a  union  of  bricklayers  and  stone  masons  justified  in 
striking  to  force  a  contractor  to  employ  them  by  the  day  to 
do  cleaning  and  pointing  at  higher  wages  than  pointers  are 
paid,  where  the  contractors  wish  to  make  contracts  with  the 
pointers  for  such  work  to  be  done  by  the  piece,  because  they 
think  they  get  better  work  at  less  cost  with  no  liability  for 
accidents,  and  where  the  pointers  wish  to  make  contracts  for 
that  work  with  the  contractors  on  terms  satisfactory  to  them? 

Before  coming  to  the  discussion  of  the  point  at  issue  the 
opinion  reviews  the  general  principles  of  the  rights  of  work¬ 
ing  men.  These  include  the  right  to  organize  and  the  gen¬ 
eral  right  to  strike.  This  last  right,  however,  in  the  Com¬ 
monwealth  of  Massachusetts  is  not  without  limitation.  One 

of  the  restrictions  referred  to  is  that  “  a  labor  union  could 

\ 

not  force  other  workmen  to  join  it  by  refusing  to  work  if 
workmen  were  employed  who  were  not  members  of  that 
union.”  After  further  consideration  of  the  general  prin¬ 
ciples  in  which  especially  the  effect  of  combination  is  dis¬ 
cussed  as  constituting  a  limitation  upon  the  rights  of  work¬ 
men,  the  opinion  takes  up  again  the  particular  case  before 
the  court. 


AMERICAN  COURTS  IN  LABOR  CASES 


176 

The  case  is  a  case  of  competition  between  the  defendant 
unions  and  the  individual  plaintiffs  for  the  work  of  pointing. 
The  work  of  pointing  for  which  these  two  sets  of  workmen 
are  competing  is  work  which  the  contractors  are  obliged  to 
have.  One  peculiarity  of  the  case  therefore  is  that  the  fight 
here  is  necessarily  a  triangular  one.  It  necessarily  involves 
the  two  sets  of  competing  workmen  and  the  contractor,  and  is 
not  confined  to  the  two  parties  to  the  contract,  as  is  the  case 
where  workmen  strike  to  get  better  wages  from  their  em¬ 
ployer  or  other  conditions  which  are  better  for  them.  .  .  . 

The  right  which  the  defendant  unions  claim  to  exercise  in 
carrying  their  point  in  the  course  of  this  competition  is  a  trade 
advantage,  namely,  that  they  have  labor  which  the  contractors 
want,  or,  if  you  please,  cannot  get  elsewhere;  and  they  insist 
upon  using  this  trade  advantage  to  get  additional  work,  namely, 
the  work  of  pointing  the  bricks  and  stone  which  they  lay. 
.  .  .  But  having  regard  to  the  right  on  which  the  defendants’ 
organization  as  a  labor  union  rests,  the  correlative  duty  owed 
by  it  to  others,  and  the  limitation  of  the  defendants’  rights 
coming  from  the  increased  power  of  organization,  we  are  of 
opinion  that  it  was  within  the  rights  of  these  unions  to  com¬ 
pete  for  the  work  of  doing  the  pointing  and,  in  the  exercise 
of  their  right  of  competition,  to  refuse  to  lay  bricks  and  set 
stones  unless  they  were  given  the  work  of  pointing  them 
when  laid.  .  .  . 

The  result  to  which  that  conclusion  brings  us  in  the  case 
at  bar  ought  not  to  be  passed  by  without  consideration. 

The  result  is  harsh  on  the  contractors,  who  prefer  to  give 
the  work  to  the  pointers  because  (1)  the  pointers  do  it  by 
contract  (in  which  case  the  contractors  escape  the  liability 
incident  to  the  relation  of  employer  and  employee)  ;  because 
(2)  the  contractors  think  that  the  pointers  do  the  work  better 
and  if  not  well  done  the  buildings  may  be  permanently  in¬ 
jured  by  acid;  and  finally  (3)  because  they  get  from  the 
pointers  better  work  with  less  liability  at  a  smaller  cost. 
Again,  so  far  as  the  pointers  (who  cannot  lay  brick  or  stone) 
are  concerned,  the  result  is  disastrous.  But  ail  that  the  labor 


UNIONISM— RIGHTS  OF  UNIONS 


177 


unions  have  done  is  to  say  you  must  employ  us  for  all  the 
work  or  none  of  it.  They  have  not  said  that  if  you  employ 
the  pointers  you  must  pay  us  a  fine,  as  they  did  in  Carew 
v.  Rutherford.  They  have  not  undertaken  to  forbid  the 
contractors  employing  pointers,  as  they  did  in  Plant  v. 
Woods.  So  far  as  the  labor  unions  are  concerned  the  con¬ 
tractors  can  employ  pointers  if  they  choose,  but  if  the  con¬ 
tractors  choose  to  give  the  work  of  pointing  the  bricks  and 
stones  to  others,  the  unions  take  the  stand  that  the  contractors 
will  have  to  get  some  one  else  to  lay  them.  The  effect  of 
this  in  the  case  at  bar  appears  to  be  that  the  contractors  are 
forced  against  their  will  to  give  the  work  of  pointing  to  the 
masons  and  bricklayers.  But  the  fact  that  the  contractors 
are  forced  to  do  what  they  do  not  want  to  do  is  not  decisive 
of  the  legality  of  the  labor  union’s  acts.  That  is  true 
wherever  a  strike  is  successful.  The  contractors  doubtless 
would  have  liked  it  better  if  there  had  been  no  competition 
between  the  bricklayers  and  masons  on  the  one  hand  and  the 
individual  pointers  on  the  other  hand.  But  there  is  com¬ 
petition.  There  being  competition,  they  prefer  the  course 
they  have  taken.  They  prefer  to  give  all  the  work  to  the 
unions  rather  than  get  nonunion  men  to  lay  bricks  and  stone 
to  be  pointed  by  the  plaintiffs. 

Further,  the  effect  of  complying  with  the  labor  unions’ 
demands  apparently  will  be  the  destruction  of  the  plaintiff’s 
business.  But  the  fact  that  the  business  of  the  plaintiff  is 
destroyed  by  the  acts  of  the  defendants  done  in  pursuance  of 
their  right  of  competition  is  not  decisive  of  the  illegality  of 
them.  It  is  well  said  by  Hammond,  J.,  in  Martell  v.  White, 
69  N.  E.,  1085,  in  regard  to  the  right  of  a  citizen  to  pursue 
his  business  without  interference  by  a  combination  to  de¬ 
stroy  it :  “  Speaking  generally,  however,  competition  in  busi¬ 
ness  is  permitted,  although  frequently  disastrous  to  those  en¬ 
gaged  in  it.  It  is  always  selfish,  often  sharp,  and  some¬ 
times  deadly.” 

Justice  Holmes  has  more  then  once  given  expression  to 


AMERICAN  COURTS  IN  LABOR  CASES 


178 

a  dissenting  opinion.  The  views  usually  expressed  in  these 
opinions  take  advanced  ground.  It  is  doubtful  whether  the 
majority  of  the  courts  will  accept  them  for  some  time.  The 
two  following  extracts  are  from  dissenting  opinions  written 
while  he  was  a  member  of  the  Massachusetts  court. 

Although  this  is  not  the  place  for  extended  economic  dis¬ 
cussion,  and  although  the  law  may  not  always  reach  ultimate 
economic  conceptions,  I  think  it  well  to  add  that  I  cherish  no 
illusions  as  to  the  meaning  and  effect  of  strikes.  While  I 
think  the  strike  a  lawful  instrument  in  the  universal  struggle 
of  life,  I  think  it  pure  phantasy  to  suppose  that  there  is  a 
body  of  capital  of  which  labor,  as  a  whole,  secures  a  larger 
share  by  its  means. 

The  annual  product,  subject  to  an  infinitesimal  deduction 
for  the  luxuries  of  the  few,  is  directed  to  consumption  by  the 
multitude,  and  is  consumed  by  the  multitude  always.  Organ¬ 
ization  and  strikes  may  get  a  larger  share  for  the  members  of 
an  organization,  but,  if  they  do,  they  get  it  at  the  expense  of 
the  less  organized  and  less  powerful  portion  of  the  laboring 
mass.  They  do  not  create  something  out  of  nothing. 

It  is  only  by  divesting  our  minds  of  questions  of  owner¬ 
ship  and  other  machinery  of  distribution,  and  by  looking 
solely  at  the  question  of  consumption, — asking  ourselves  what 
is  the  annual  product,  who  consumes  it,  and  what  changes 
would  or  could  we  make, — that  we  can  keep  in  the  world  of 
realities. 

But,  subject  to  the  qualifications  which  I  have  expressed, 
I  think  it  lawful  for  a  body  of  workmen  to  try  by  combination 
to  get  more  than  they  now  are  getting,  although  they  do  it  at 
the  expense  of  their  fellows,  and  to  that  end  to  strengthen 
their  union  by  the  boycott  and  the  strike.  (Plant  v.  Woods.) 

I  feel  pretty  confident  that  they  equally  will  abandon  the 
idea  that  an  organized  refusal  by  workmen  of  social  inter¬ 
course  with  a  man  who  shall  enter  their  antagonist’s  employ 
is  lawful,  if  it  is  dissociated  from  any  threat  of  violence,  and 
is  made  for  the  sole  object  of  prevailing,  if  possible,  in  a 


UNIONISM— RIGHTS  OF  UNIONS 


179 


contest  with  their  employer  about  the  rate  of  wages.  The  fact 
that  the  immediate  object  of  the  act  by  which  the  benefit  to 
themselves  is  to  be  gained  is  to  injure  their  antagonist  does 
not  necessarily  make  it  unlawful,  any  more  than  when  a 
great  house  lowers  the  price  of  goods  for  the  purpose  and 
with  the  effect  of  driving  a  smaller  antagonist  from  the  busi¬ 
ness.  (Vegelahn  v.  Guntner.) 

Turning  to  the  other  side  of  the  case,  there  are  to  be 
found  in  abundance  expressions  of  opinion  against  the 
lawfulness  of  efforts  of  union  men  to  displace  their  rivals. 
Separated  from  the  context,  many  of  these  expressions 
sound  very  similar  to  those  that  uphold  union  rights.  The 
point  is  stated  in  its  most  general  terms  by  Circuit  Judge 
Drummond  (Secor  v.  Railway)  as  early  as  1877  before 
much  of  the  complexity  had  developed. 

We  all  acknowledge  the  rights  of  labor.  It  is  simply  the 
right  of  the  man  who  performs  labor  to  obtain  the  price  he 
can  from  his  employer,  and  not  to  dictate  terms  to  the  em¬ 
ployer.  The  rights  of  labor  result  from  an  agreement  made 
among  men,  not  by  an  order,  or  a  dictation  from  one  man  to 
another.  .  .  .  But  when  it  is  claimed  that  the  right  of  labor 
consists  in  not  only  refusing  to  labor,  but  in  interfering  with 
the  labor  of  others,  we,  of  course,  can  have  no  feeling  of 
respect  for  any  such  right  as  that.  .  .  .  What  I  wish  to  im¬ 
press  particularly  upon  them  is,  that  it  is  incomprehensible 
to  every  man  of  any  intelligence,  any  man  who  can  sym¬ 
pathize  even  with  what  are  sometimes  called  the  wrongs  of 
labor,  that  there  can  be  any  pretense  of  right  in  preventing 
other  men  from  labor.  As  I  said  before,  it  is  an  absurdity  to 
say  that  you  can  protect  the  rights  of  labor  by  trampling  upon 
the  rights  of  labor. 

Twenty  years  later  in  the  New  York  court  it  was  said : 

The  sympathies  or  the  fellow  feeling  which,  as  a  social 


I 


!8o  AMERICAN  COURTS  IN  LABOR  CASES 

principle,  underlies  the  association  of  workingmen  for  their 
common  benefit,  are  not  consistent  with  a  purpose  to  oppress 
the  individual  who  prefers  by  single  effort  to  gain  his  liveli¬ 
hood.  If  organization  of  workingmen  is  in  line  with  good 
government,  it  is  because  it  is  intended  as  a  legitimate  instru¬ 
mentality  to  promote  the  common  good  of  its  members.  If  it 
militates  against  the  general  public  interest,  if  its  powers  are 
directed  towards  the  repression  of  individual  freedom,  upon 
what  principle  shall  it  be  justified?  (Curran  v.  Galen.) 

Taking  the  point  of  view  of  the  employer’s  right  Judge 
Brown  of  Pennsylvania  asserts : 

The  appellee  had  an  unquestioned  right,  in  the  conduct  of 
his  business,  to  employ  workmen  who  were  independent  of  any 
labor  union,  and  he  had  the  further  right  to  adopt  a  system 
of  apprenticeship  which  excluded  his  apprentices  from  mem¬ 
bership  in  such  a  union.  He  was  responsible  to  no  one  for 
his  reasons  in  adopting  such  a  system,  and  no  one  had  a  right 
to  interfere  with  it  to  his  prejudice  or  injury.  Such  an  inter¬ 
ference  with  it  was  an  interference  with  his  business,  and,  if 
unlawful,  cannot  be  permitted.  (Flaccus  v.  Smith.) 

From  the  same  bench  two  years  later  Judge  Dean  took 
the  right  of  non-union  laborers  as  a  starting  point  and 
asserted : 

Trades  unions  may  cease  to  work,  for  reasons  satisfactory 
to  their  members ;  but  if  they  combine  to  prevent  others  from 
obtaining  work  by  threats  of  a  strike,  or  combine  to  prevent 
an  employer  from  employing  others  by  threats  of  a  strike, 
they  combine  to  accomplish  an  unlawful  purpose — a  purpose 
as  unlawful  now  as  it  ever  was,  though  not  punishable  by 
indictment.  Such  combination  is  a  despotic  and  tyrannical 
violation  of  the  indefeasible  right  of  labor  to  acquire  property, 
which  courts  are  bound  to  restrain.  It  is  utterly  subversive 
of  the  letter  and  spirit  of  the  Declaration  of  Rights.  If  such 
combination  be  in  accord  with  the  law  of  the  trades  union, 


UNIONISM — RIGHTS  OF  UNIONS 


181 


then  that  law  and  the  organic  law  of  the  people  of  a  free 
commonwealth  cannot  stand  together.  One  or  the  other  must 
go  down.  (Erdman  v.  Mitchell.) 

Judge  Wiswell  of  Maine  viewed  the  matter  from  the 
point  of  view  of  the  threat  involved  in  the  acts  of  the  union. 

Our  conclusion  is  that  wherever  a  person,  by  means  of 
fraud  or  intimidation,  procures  either  the  breach  of  a  con¬ 
tract,  or  the  discharge  of  a  plaintiff  from  an  employment, 
which,  but  for  such  wrongful  interference,  would  have  con¬ 
tinued,  he  is  liable  in  damages  for  such  injuries  as  naturally 
result  therefrom ;  and  that  the  rule  is  the  same  whether  by 
these  wrongful  means  a  contract  of  employment  definite  as  to 
time  is  broken,  or  an  employer  is  induced,  solely  by  reason 
of  such  procurement,  to  discharge  an  employee  whom  he 
would  otherwise  have  retained.  ...  We  think  that  the  im¬ 
portant  question  in  an  act  of  this  kind  is  as  to  the  nature  of 
the  defendant’s  act,  and  the  means  adopted  by  him  to  ac¬ 
complish  his  purpose.  Merely  to  induce  another  to  leave  an 
employment,  or  to  discharge  an  employee,  by  persuasion  or 
argument,  however  whimsical,  unreasonable,  or  absurd,  is  not, 
in  and  of  itself,  unlawful,  and  we  do  not  decide  that  such 
interference  may  become  unlawful  by  reason  of  the  defend¬ 
ant’s  malicious  motives,  but  simply  that  to  intimidate  an  em¬ 
ployer  by  threats,  if  the  threats  are  of  such  a  character  as  to 
produce  this  result,  and  thereby  cause  him  to  discharge  an  em¬ 
ployee  whom  he  desired  to  retain,  and  would  have  retained, 
except  for  such  unlawful  threats,  is  an  actionable  wrong. 
(Perkins  v.  Pendleton.) 

Circuit  Judge  Brown  says: 

Associations  have  no  more  right  to  inflict  injury  upon  others 
than  individuals  have.  All  combinations  and  associations  de¬ 
signed  to  coerce  workmen  to  become  members,  or  to  interfere 
with,  obstruct,  vex,  or  annoy  them  in  working,  or  in  obtain¬ 
ing  work,  because  they  are  not  members,  or  in  order  to  in- 


!§2  AMERICAN  COURTS  IN  LABOR  CASES 

duce  them  to  become  members ;  or  designed  to  prevent  em¬ 
ployers  from  making  a  just  discrimination  in  the  rate  of 
wages  paid  to  the  skillful  and  to  the  unskillful;  to  the  diligent 
and  to  the  lazy ;  to  the  efficient  and  to  the  inefficient ;  and  all 
associations  designed  to  interfere  with  the  perfect  freedom  of 
employers  in  the  proper  management  and  control  of  their  law¬ 
ful  business,  or  to  dictate  in  any  particular  the  terms  upon 
which  their  business  shall  be  conducted,  by  means  of  threats 
of  injury  or  loss,  by  interference  with  their  property  or 
traffic,  or  with  their  lawful  employment  of  other  persons,  or 
designed  to  abridge  any  of  these  rights, — are  pro  tanto 
illegal  combinations  or  associations ;  and  all  acts  done  in 
furtherance  of  such  intentions  by  such  means  and  accom¬ 
panied  by  damage,  are  actionable.  (Old  Dominion  Steam¬ 
ship  Co.  v.  McKenna.) 

Judge  Hammond  of  Massachusetts  in  his  opinion  in  Plant 
v.  Woods  seeks  to  eliminate  the  element  of  unionism  and 
to  settle  the  question  on  the  principle  of  the  rights  of 
laborers. 

It  is  to  be  observed  that  this  is  not  a  case  between  the  em¬ 
ployer  and  employed,  or,  to  use  a  hackneyed  expression,  be¬ 
tween  capital  and  labor,  but  between  laborers  all  of  the  same 
craft,  and  each  having  the  same  right  as  any  one  of  the  others 
to  pursue  his  calling.  In  this  as  in  every  other  case  of  equal 
rights  the  right  of  each  individual  is  to  be  exercised  with  due 
regard  to  the  similar  right  of  all  others,  and  the  right  of  one 
be  said  to  end  where  that  of  another  begins.  The  right  in¬ 
volved  is  the  right  to  dispose  of  one’s  labor  with  full  freedom. 
This  is  a  legal  right,  and  it  is  entitled  to  legal  protection.  Sir 
William  Erie,  in  his  book  on  Trades  Unions  (page  12),  has 
stated  this  in  the  following  language,  which  has  been  several 
times  quoted  with  approval  by  judges  in  England:  “Every 
person  has  a  right,  under  the  law,  as  between  himself  and 
his  fellow  subjects,  to  full  freedom  in  disposing  of  his  own 
labor  or  his  own  capital  according  to  his  own  will.  It  fol- 


UNIONISM— RIGHTS  OF  UNIONS 


183 

lows  that  every  other  person  is  subject  to  the  correlative 
duty  arising  therefrom,  and  is  prohibited  from  any  obstruction 
to  the  fullest  exercise  of  this  right  which  can  be  made  com¬ 
patible  with  the  exercise  of  similar  rights  by  others.  Every 
act  causing  an  obstruction  to  another  in  the  exercise  of  the 
right  comprised  within  this  description,  done  not  in  the 
exercise  of  the  actor’s  own  right,  but  for  the  purpose  of 
obstruction,  would,  if  damage  should  be  caused  thereby  to 
the  party  obstructed,  be  a  violation  of  this  prohibition.” 
The  same  rule  is  stated  with  care  and  discrimination  by 
Wells,  J.,  in  Walker  v.  Cronin:  “Every  one  has  a  right  to 
enjoy  the  fruits  and  advantages  of  his  own  enterprise,  in¬ 
dustry,  skill,  and  credit.  He  has  no  right  to  be  protected 
against  competition,  but  he  has  a  right  to  be  free  from  mali¬ 
cious  and  wanton  interference,  disturbance,  or  annoyance. 
If  disturbance  or  loss  come  as  the  result  of  competition,  or  the 
exercise  of  like  rights  by  others,  it  is  damnum  absque  in¬ 
juria,  unless  some  superior  right  by  contract,  or  otherwise, 
is  interfered  with.  But  if  it  come  from  the  merely  wanton  or 
malicious  acts  of  others,  without  the  justification  of  com¬ 
petition,  or  the  service  of  any  interest  or  lawful  purpose,  it 
then  stands  upon  a  different  footing.”  In  this  case  the  acts 
complained  of  were  calculated  to  cause  damage  to  the  plain¬ 
tiffs,  and  did  actually  cause  such  damage;  and  they  were  in¬ 
tentionally  done  for  that  purpose.  Unless,  therefore,  there 
was  justifiable  cause,  the  acts  were  malicious  and  unlawful. 

Some  judges  are  impressed  by  the  fact  of  organization 
and  the  influence  that  such  organization  has  in  controlling 
the  acts  of  its  members.  To  some  even  this  control  appears 
to  be  coercion.  Quotations  previously  made  indicate  the 
view  of  some  courts  favorable  to  such  organization.  The 
following  extracts  indicate  an  impression  in  the  minds  of 
judges  decidedly  unfavorable  to  the  unions.  In  Booth  v. 
Burgess  the  court  was  dealing  with  a  strike  called  to  compel 
an  employer  to  cease  to  deal  with  another  employer  whose 


AMERICAN  COURTS  IN  LABOR  CASES 


184 

workmen  had  a  grievance;  a  sympathetic  strike.  The  court, 
speaking  through  Vice  Chancellor  Stevenson,  says: 

These  workmen  are  to  be  forced  to  strike  against  their  will 
whenever  the  defendants  shall  say  the  word.  The  coercion 
consists  in  the  fact  that  if  any  workman  refuses  to  strike  he 
is  liable  to  a  fine,  and  also  to  expulsion  from  his  union.  Ex¬ 
pulsion  from  the  union  subjects  the  victim  not  only  to  obloquy 
but  also  to  pecuniary  loss,  and  makes  it  more  difficult  for  him 
to  get  employment  and  make  his  living,  as  is  amply  illustrated 
in  this  case. 

Barr  v.  Essex  Trades  Council  dealt  with  an  extensively 
organized  boycott  against  a  paper  that  refused  to  unionize 
its  press  and  type  rooms.  The  Trades  Council  took  up  the 
prosecution  of  the  boycott  and  pushed  it  through  the  various 
labor  organizations  of  the  community.  Vice  Chancellor 
Green  wrote  the  opinion  of  the  court,  in  which  is  found 
the  following: 

It  is  said  that  it  was  only  the  exercise  by  each  person  of  his 
right  to  spend  his  money  as  his  own  will  dictated.  The 
fallacy  of  this  is  apparent.  It  loses  sight  of  the  combination, 
the  whole  strength  of  which  lies  in  the  fact  that  each  in¬ 
dividual  has  surrendered  his  own  discretion  and  will  to  the 
direction  of  the  accredited  representative  of  all  the  organiza¬ 
tions.  He  no  longer  uses  his  own  judgment,  but  by  entering 
into  the  combination  agrees  to  be  bound  by  its  decree.  As 
is  said  in  Temperton  v.  Russell :  “  Those  men  had  bound 
themselves  to  obey,  and  they  knew  they  had  done  so,  and  that, 
if  they  did  not  obey,  they  would  be  fined  or  expelled  from 
the  union  to  which  they  belonged.1’  It  is  common  knowledge, 
if,  indeed,  it  does  not  amply  so  appear  by  the  papers  in  this 
case,  that  a  member  of  a  labor  organization  who  does  not 
submit  to  the  edict  of  his  union  asserts  his  independence  of 
judgment  and  action  at  the  risk,  if  not  the  absolute  sacrifice, 
of  all  association  with  his  fellow  members.  They  will  not  eat. 


UNIONISM— RIGHTS  OF  UNIONS 


drink,  live,  or  work,  in  his  company.  Branded  by  the  pecu¬ 
liarly  offensive  epithets  adopted,  he  must  exist  ostracized,  so¬ 
cially  and  industrially,  so  far  as  his  former  associates  are  con¬ 
cerned.  Freedom  of  will,  under  such  circumstances,  cannot 
be  expected. 

In  Berry  v.  Donovan  the  question  of  competition  was 
raised  as  between  the  union  and  non-union  workmen.  Chief 
Justice  Ivnowlton  in  writing  the  opinion  of  the  court  dealt 
with  that  phase  of  the  question  fully,  in  the  following : 

The  only  argument  that  we  have  heard  in  support  of  inter¬ 
ference  by  labor  unions  in  cases  of  this  kind  is  that  it  is 
justifiable  as  a  kind  of  competition.  It  is  true  that  fair  com¬ 
petition  in  business  brings  persons  into  rivalry,  and  often  jus¬ 
tifies  action  for  one’s  self  which  interferes  with  proper  action 
of  another.  Such  action  on  both  sides  is  the  exercise  by 
competing  persons  of  equal  conflicting  rights.  The  principle 
appealed  to  would  justify  a  member  of  the  union,  who  was 
seeking  employment  for  himself,  in  making  an  offer  to  serve 
on  such  terms  as  would  result,  and  as  he  knew  would  result, 
in  the  discharge  of  the  plaintiff  by  his  employer,  to  make  a 
place  for  the  new  comer.  Such  an  offer,  for  such  a  purpose, 
would  be  unobjectionable.  It  would  be  merely  the  exercise 
of  a  personal  right,  equal  in  importance  to  the  plaintiff’s  right. 
But  an  interference  by  a  combination  of  persons  to  obtain  the 
discharge  of  a  workman  because  he  refuses  to  comply  with 
their  wishes,  for  their  advantage,  in  some  matter  in  which 
he  has  a  right  to  act  independently,  is  not  competition.  In 
such  a  case  the  action  taken  by  the  combination  is  not  in  the 
regular  course  of  their  business  as  employees,  either  in  the 
service  in  which  they  are  engaged  or  in  an  effort  to  obtain 
employment  in  other  service.  The  result  which  they  seek  to 
obtain  cannot  come  directly  from  anything  that  they  do  with¬ 
in  the  regular  line  of  their  business  as  workers  competing  in 
the  labor  market.  It  can  only  come  from  action  outside  of 
the  province  of  workingmen,  intended  directly  to  injure  an- 


i86 


AMERICAN  COURTS  IN  LABOR  CASES 


other,  for  the  purpose  of  compelling  him  to  submit  to  their 
dictation.  It  is  difficult  to  see  how  the  object  to  be  gained  can 
come  within  the  field  of  fair  competition.  If  we  consider  it  in 
reference  to  the  right  of  employees  to  compete  with  one  an¬ 
other,  inducing  a  person  to  join  a  union  has  no  tendency  to 
aid  them  in  such  competition.  Indeed,  the  object  of  organi¬ 
zations  of  this  kind  is  not  to  make  competition  of  employees 
with  one  another  more  easy  or  successful.  It  is  rather,  by 
association,  to  prevent  such  competition,  to  bring  all  to  equal¬ 
ity  and  to  make  them  act  together  in  a  common  interest. 
Plainly,  then,  interference  with  one  working  under  a  contract, 
with  a  view  to  compel  him  to  join  a  union,  cannot  be  justified 
as  a  part  of  the  competition  of  workmen  with  one  another. 

We  understand  that  the  attempted  justification  rests  en¬ 
tirely  upon  another  kind  of  so-called  competition,  namely, 
competition  between  employers  and  the  employed,  in  the  at¬ 
tempt  of  each  class  to  obtain  as  large  a  share  as  possible  of 
the  income  from  their  combined  efforts  in  the  industrial  field. 
In  a  strict  sense  this  is  hardly  competition.  It  is  a  struggle 
or  contention  of  interests  of  different  kinds,  which  are  in 
opposition,  so  far  as  the  division  of  profits  is  concerned.  In 
a  broad  sense,  perhaps,  the  contending  forces  may  be  called 
competitors.  At  all  events,  we  may  assume  that,  as  between 
themselves,  the  principle  which  warrants  competition  per¬ 
mits  also  reasonable  efforts,  of  a  proper  kind,  which  have  a 
direct  tendency  to  benefit  one  party  in  his  business  at  the  ex¬ 
pense  of  the  other.  It  is  no  legal  objection  to  action  whose  di¬ 
rect  effect  is  helpful  to  one  of  the  parties  in  the  struggle  that 
it  is  also  directly  detrimental  to  the  other.  But  when  action 
is  directed  against  the  other  primarily  for  the  purpose  of  doing 
him  harm,  and  thus  compelling  him  to  yield  to  the  demand  of 
the  actor,  and  this  action  does  not  directly  affect  the  property 
or  business  or  status  of  the  actor,  the  case  is  different,  even 
if  the  actor  expects  to  derive  a  remote  or  indirect  benefit 
from  the  act.  The  gain  which  a  labor  union  may  expect  to 
derive  from  inducing  others  to  join  it  is  not  an  improvement 
to  be  obtained  directly  in  the  conditions  under  which  the  men 


UNIONISM— RIGHTS  OF  UNIONS 


18  7 


are  working,  but  only  added  strength  for  such  contests  with 
employers  as  may  arise  in  the  future.  An  object  of  this 
kind  is  too  remote  to  be  considered  a  benefit  in  business,  such 
as  to  justify  the  infliction  of  intentional  injury  upon  a  third 
person  for  the  purpose  of  obtaining  it.  If  such  an  object  were 
treated  as  legitimate,  and  allowed  to  be  pursued  to  its  complete 
accomplishment,  every  employee  would  be  forced  into  mem¬ 
bership  in  a  union,  and  the  unions,  by  a  combination  of  those 
in  different  trades  and  occupations,  would  have  complete  and 
absolute  control  of  all  the  industries  of  the  country.  Em¬ 
ployers  would  be  forced  to  yield  to  all  their  demands  or  give 
up  business.  The  attainment  of  such  an  object  in  the  struggle 
with  employers  would  not  be  competition,  but  monopoly.  A 
monopoly,  controlling  anything  which  the  world  must  have, 
is  fatal  to  prosperity  and  progress.  In  matters  of  this  kind 
the  law  does  not  tolerate  monopolies.  The  attempt  to  force 
all  laborers  to  combine  in  unions  is  against  the  policy  of  the 
law,  because  it  aims  at  monopoly.  It  therefore  does  not 
justify  causing  the  discharge,  by  his  employer,  of  an  individual 
laborer  working  under  a  contract.  It  is  easy  to  see  that  for 
different  reasons  an  act  which  might  be  done  in  legitimate 
competition  by  one  or  two  or  three  persons,-  each  proceeding 
independently,  might  take  on  an  entirely  different  character, 
both  in  its  nature  and  its  purpose,  if  done  by  hundreds  in 
combination. 

We  have  no  desire  to  put  obstacles  in  the  way  of  employees 
who  are  seeking  by  combination  to  obtain  better  conditions 
for  themselves  and  their  families.  We  have  no  doubt  that 
laboring  men  have  derived  and  may  hereafter  derive  advant¬ 
ages  from  organization.  We  only  say  that  under  correct 
rules  of  law,  and  with  a  proper  regard  for  the  rights  of  in¬ 
dividuals,  labor  unions  cannot  be  permitted  to  drive  men  out 
of  employment  because  they  choose  to  work  independently. 
If  disagreements  between  those  who  furnish  the  capital  and 
those  who  perform  the  labor  employed  in  industrial  enter¬ 
prises  are  to  be  settled  only  by  industrial  wars,  it  would  give 
a  great  advantage  to  combinations  of  employees,  if  they 


AMERICAN  COURTS  IN  LABOR  CASES 


1 88 

could  be  permitted  by  force  to  obtain  a  monopoly  of  the  labor 
market.  But  we  are  hopeful  that  this  kind  of  warfare  will 
soon  give  way  to  industrial  peace,  and  that  rational  methods 
of  settling  such  controversies  will  be  adopted  universally. 

In  Reynolds  v.  Davis  the  supreme  court  of  Massachu¬ 
setts  recorded  an  opinion  that  entered  upon  the  considera¬ 
tion  of  the  rights  of  unions  over  their  own  members.  The 
union  had  undertaken  to  maintain  practically  a  closed  shop, 
by  refusing  to  work  for  an  employer  who  had  announced 
that  open-shop  rules  were  to  prevail.  The  court  were  in 
agreement  that  a  strike  for  such  a  purpose  was  not  lawful. 
A  concurring  opinion  was  written  in  which  the  strike  was 
condemned  but  not  for  the  same  reasons.  The  opinion  of 
the  majority  reveals  its  view  of  the  menace  of  the  union 
in  the  following  extract: 

By  the  working  and  trade  rules  of  this  council  every  griev¬ 
ance  which  a  member  of  a  local  union  affiliated  with  the  coun¬ 
cil  has  against  his  employer  is  to  be  investigated  by  the  exe¬ 
cutive  board  of  the  council,  and  if  the  employer  does  not 
comply  with  the  decision  of  the  executive  board  he  is  reported 
to  the  council  as  “  unfair,”  and  upon  being  declared  “  unfair  ” 
by  the  council  the  executive  board  is  “  to  again  interview  ” 
the  employer,  and  if  the  employer  continues  in  his  refusal  to 
comply  with  the  demands  of  the  council  the  board  “  shall  at 
once  remove  all  union  men  ”  from  his  employ,  and  “  no  union 
man  shall  be  allowed  to  go  to  work  ”  for  him  until  he  is 
“  again  placed  upon  the  fair  list  by  the  .  .  .  council.” 

In  other  words,  the  members  of  the  defendant  unions,  by 
the  terms  of  their  own  rules  undertook  to  decide  each  case  of 
an  individual  grievance  between  a  single  employee  and  his 
employer,  to  decree  what  should  be  done  by  the  employer  as 
well  as  by  the  employee  and  to  enforce  compliance  with  its 
decision  by  threatening  and  instituting  a  strike  in  which  all 
members  were  bound  to  join.  What  we  mean  by  an  in- 


UNIONISM— RIGHTS  OF  UNIONS 


189 

dividual  grievance  is  (for  example)  the  discharge  by  his 
employer  of  a  member  of  the  union  for  drunkenness  or  in¬ 
efficiency. 

This  statement  of  the  make-up  of  the  defendant  unions 
and  the  trades  council  with  which  they  are  affiliated  makes 
plain  what  the  plaintiffs  were  aiming  at  in  the  open  shop 
rules.  And  it  also  makes  plain  what  was  the  main  or  one 
of  the  main  purposes  for  which  the  strike  in  question  was 
instituted  by  the  individual  defendants. 

The  strike  in  question  was  a  combination  for  the  purpose 
of  making  the  trades  council,  composed  of  delegates  from 
the  unions  of  which  the  individual  defendants  are  members, 
the  arbiter  of  all  questions  between  individual  employees  and 
their  employers. 

It  purports  to  include  questions  arising  under  contracts  still 
in  existence  between  the  two.  To  force  the  employer  to  sub¬ 
mit  to  a  delegate  body  of  employees  his  rights  under  an  exist¬ 
ing  contract  by  a  combination  for  that  purpose  is  not  a  justi¬ 
fiable  interference  with  their  employer’s  business. 

And  in  cases  arising  outside  existing  contracts  it  is  an 
attempt  to  force  compliance  on  the  part  of  employers  with 
the  decision  of  this  delegate  body  of  employees  as  to  whether 
a  single  employee  is  or  is  not  to  work  for  the  employer,  which 
decision  is  to  be  enforced  by  a  strike.  Such  a  strike  would  be 
a  strike  in  the  nature  of  a  sympathetic  strike,  that  is  to  say, 
it  is  a  strike  not  to  forward  the  common  interests  of  the  . 
strikers  but  to  forward  the  interests  of  an  individual  employee 
in  respect  to  a  grievance  between  him  and  his  employer  where 
no  contract  of  employment  exists. 

We  do  not  mean  to  say  that  a  labor  union  cannot  combine 
to  support  a  committee  to  take  up  individual  grievances  in 
behalf  of  the  several  members.  What  we  now  decide  to  be 
illegal  is  a  combination  that  such  grievances  (that  is  to  say, 
grievances  between  an  individual  member  of  a  union  and  his 
employer  which  are  not  common  to  the  union  members  as  a 
class)  shall  be  decided  by  the  employees  and  that  decision 
enforced  by  a  strike  on  the  part  of  all. 


190 


AMERICAN  COURTS  IN  LABOR  CASES 


Chief  Justice  Knowlton,  after  stating  that  the  opinion 
reached  by  the  majority  seemed  to  him  “  erroneous  in  the 
grounds  on  which  it  purports  to  rest  ”  and  declaring  that 
“  with  the  final  disposition  of  the  case  I  am  satisfied,”  states 
the  grounds  that  seem  to  him  more  satisfactory.  These 
have  been  referred  to  more  fully  in  connection  with  the 
closed  shop  discussion.  Of  the  views  expressed  by  the 
majority  he  writes : 

It  is  right  that  all  the  members  of  such  a  union  should  unite 
for  the  protection  of  the  interests  of  every  individual  member. 
If  the  feeblest  of  its  members  has  a  just  grievance  as  an  em¬ 
ployee  against  their  common  employer,  it  is  proper  that  the 
whole  combination  should  act  together  to  obtain  redress  of 
the  wrong.  The  most  effectual  way  of  enforcing  the  right 
of  every  member  to  just  treatment  from  his  employer,  in 
reference  to  wages,  hours  of  labor  and  other  things  affecting 
his  interests,  is  by  withholding  the  labor  of  the  union  until 
justice  is  done.  To  make  this  a  potent  inducement  the  union 
must  be  able  to  act  as  one  body,  and  to  hold  every  member  to 
the  performance  of  his  duties  to  his  fellow  members,  so  that 
all  may  be  a  united  force.  Of  course  there  must  be  a  method 
of  determining  what  action,  if  any,  shall  be  taken  by  the 
union  in  any  case  of  an  alleged  grievance.  Such  a  deter¬ 
mination  cannot  properly  be  made  without  an  investigation 
of  the  facts.  Such  an  investigation  ordinarily  would  involve 
conferences  with  the  employer,  and  negotiations  to  see  whether 
he  would  consent  to  an  improvement  of  the  conditions,  if  they 
should  appear  to  be  unjust  to  the  employee.  Such  confer¬ 
ences  and  negotiations,  without  which  ordinarily  no  labor 
union  would  be  justified  in  striking,  call  for  a  representative 
or  representatives  of  the  union  to  present  its  side  of  the  con¬ 
troversy  to  the  employer,  and  to  act  for  the  union  in  the 
maintenance  of  its  interests  against  the  opposite  party.  In 
such  cases  the  employer  and  employee  often  come  together  as 
adverse  parties,  each  contending  for  that  which  seems  for  his 


UNIONISM— RIGHTS  OF  UNIONS 


191 

advantage.  The  final  determination  of  the  position  to  be  taken 
by  the  union  may  be  by  a  vote  of  its  members.  It  may  be  by 
the  action  of  a  board  of  officers  to  whom  the  union  intrusts 
this  duty.  In  favor  of  the  latter  method  is  the  fact  that,  in 
times  of  excitement,  assemblies  of  men  and  women  often  act 
hastily  under  a  misapprehension  of  the  facts,  and  under  an 
impulse  of  passion  aroused  by  inflammatory  appeals  to  their 
feelings.  But,  in  one  way  or  another,  such  determinations 
must  be  made,  and  must  be  treated  as  finally  settling  the 
position  which  the  union  is  to  take  for  itself,  as  a  party  deal¬ 
ing  with  an  adverse  party  in  reference  to  its  supposed  rights. 
Of  course,  if  the  employer  takes  a  different  view,  neither  is 
bound  by  the  action  of  the  other,  and  each  may  make  any 
lawful  effort  to  prevail  in  the  contest  with  the  other. 

In  the  opinion  the  present  strike  is  condemned  because  of 
the  rules  which  govern  the  union.  Under  these,  every  griev¬ 
ance  is  to  be  investigated  by  the  executive  board  of  the  council. 
Surely  this  is  right  and  proper.  If  the  employer  refuses  to  do 
that  which  the  executive  board  thinks  he  ought  to  do,  the 
facts  are  reported  by  the  board  to  the  next  meeting  of  the 
Building  Trades  Council,  with  a  recommendation  that  he 
be  declared  unfair.  If  he  is  then  declared  unfair  by  the  Build¬ 
ing  Trades  Council,  that  is  equivalent  to  a  decision  that  he  is 
in  the  wrong.  It  is  then  the  duty  of  the  executive  board  to 
again  interview  the  employer,  and  if  he  fails  to  comply  with 
the  conditions  that  the  Building  Trades  Council  deems  just, 
a  strike  is  to  be  declared  and  maintained  by  the  union  until 
he  complies  with  these  conditions. 

It  is  to  be  noticed  that  this  course  of  proceeding  is  entirely 
for  the  guidance  of  the  members  of  the  union.  The  employer 
takes  such  measures  and  acts  upon  such  principles  as  he 
chooses  for  his  own  guidance.  If  the  result  is  a  failure  to 
agree,  then  each  stands  upon  his  rights,  and  it  is  a  question 
which  can  force  the  other  to  yield,  or  how  they  can  after¬ 
wards  reach  a  compromise.  The  trades  council  is  no  more 
the  arbiter  of  questions  between  individual  employees  and 
their  employers  than  the  employer  is.  The  trades  council, 


192 


AMERICAN  COURTS  IN  LABOR  CASES 


as  a  representative  official  board,  decides  for  one  party  and 
determines  its  action,  and  the  employer  decides  for  the  other 
party  and  determines  his  action.  Neither  assumes  to  deter¬ 
mine  anything  for  the  other,  but  the  action  of  each  is  gov¬ 
erned  by  its  own  determination. 

I  do  not  see  how  any  rule  can  be  more  just  and  proper 
for  the  guidance  of  a  labor  union  when  a  dispute  arises  be¬ 
tween  its  members,  or  any  one  of  its  members,  and  the  em¬ 
ployer.  Suppose  the  case  is  the  reduction  of  wages  by  the 
employer  which  the  members  of  the  union  deem  unjust. 
What  more  fair  or  equitable  method  of  dealing  with  such  a 
supposed  injustice  could  be  devised?  To  say  that  a  strike 
founded  on  such  a  reduction  is  illegal  because  of  a  rule  pro¬ 
viding  this  method  of  dealing  with  the  grievance,  is,  in  my 
judgment,  equivalent  to  saying  that  no  labor  union  shall  be 
permitted  to  do  anything  to  promote  the  proper  objects 
of  its  organization. 

It  is  objected  that  the  rule  does  not  exclude  questions 
arising  under  contracts  subsisting  between  the  employer  and 
individual  members  of  the  union.  Why  should  it  exclude  any 
question  which  arises  under  a  complaint  of  an  alleged  griev¬ 
ance?  Every  member  of  the  union  is  entitled  to  the  support 
of  his  fellow  members  in  regard  to  any  question  directly 
affecting  his  rights  as  an  employee,  if  he  is  in  the  right  and 
his  employer  is  in  the  wrong.  How  can  the  union  ascertain 
whether  action  should  be  taken  in  his  behalf  without  an  in¬ 
vestigation?  If  the  investigation  should  show  that  the  aid 
which  he  seeks  is  to  enable  him  to  break  a  contract  with  his 
employer,  it  is  to  be  assumed  that  the  council  would  immedi¬ 
ately  decline  to  help  him.  If  a  strike  should  be  ordered  to 
compel  an  employer  to  submit  to  a  breach  of  contract  by  one 
of  his  employees,  such  a  strike  would  be  illegal  because  it 
would  be  for  an  illegal  object,  not  because  of  the  method  pre¬ 
scribed  by  the  rules  of  the  union  for  investigating  the  matter, 
or  for  declaring  a  strike.  It  must  be  assumed  that  these 
rules  were  adopted  to  be  properly  applied  in  proper  cases. 
They  do  not  purport  to  authorize  the  trades  council  to  de- 


UNIONISM— RIGHTS  OF  UNIONS 


193 


dare  a  strike  for  an  illegal  object.  It  is  to  be  presumed  that 
the  council  would  refuse  to  declare  a  strike  in  any  case  in 
which  the  investigation  showed  that  the  desired  object  was  il¬ 
legal.  In  the  present  case  there  is  no  testimony  nor  sug¬ 
gestion  that  one  of  the  purposes  of  the  strike  was  to  compel 
submission  by  an  employer  to  a  breach  of  his  contract  with 
an  employee. 

In  framing  rules  for  a  labor  union,  it  would  be  unreason¬ 
able  and  impracticable  to  mention  expressly  all  possible 
cases  in  which  a  strike  ought  not  to  be  ordered,  and,  in 
terms,  to  forbid  action  in  all  such  cases. 

I  find  nothing  in  this  part  of  the  rules  and  by-laws  except 
that  which  I  should  expect  to  find  in  those  of  any  well- 
organized  labor  union.  I  discover  nothing  in  the  master’s 
report  or  the  evidence  to  indicate  that  these  rules  were  in¬ 
tended  to  be  used  for  the  unlawful  promotion  of  a  purely 
sympathetic  strike,  or  that  they  ever  were  so  used.  I  have 
endeavored  to  show  that  if  any  member  of  a  union  should 
have  a  grievance  as  an  employee  against  his  employer,  even 
if  it  was  not  common  to  members  of  the  union  as  a  class,  it 
would  be  the  duty  of  his  fellow  members,  in  accordance  with 
fundamental  principles  of  labor  unionism,  to  unite  for  the 
redress  of  the  grievance,  even  by  striking,  if  that  should 
be  necessary. 

So  far  as  appears,  the  posting  and  publication  of  the  open 
shop  rules,  and  the  employment  or  attempt  at  employment  of 
nonunion  men,  which  were  the  only  matters  complained  of  by 
the  defendants,  had  a  relation  to  members  of  each  of  the  local 
unions  before  the  court,  as  direct  as  it  had  to  any  other 
union  men.  Members  of  these  unions  were  employed  in  the 
shops  of  the  plaintiff.  If  the  ground  of  complaint  had  been 
a  proper  subject  for  adverse  action  by  an  individual  work¬ 
man,  it  would  have  been  a  proper  subject  for  investigation 
and  action  by  the  union  of  which  he  was  a  member. 

Because  the  opinion  in  this  case  makes  the  decision  turn 
upon  the  rules  and  by-laws  to  which  I  have  referred,  I  do 
not  agree  with  it. 


194 


AMERICAN  COURTS  IN  LABOR  CASES 


There  is  yet  one  case  coming  under  this  general  topic  that 
must  not  be  passed  over.  It  came  before  the  Massachusetts 
supreme  court  and  the  opinion  was  handed  down  in  1908 
(Willcutt  v.  Bricklayers  Union).  The  prevailing  opinion 
written  by  Judge  Hammond  sets  forth  fully  one  view  and 
the  dissenting  opinion  by  Judge  Sheldon  expresses  in  detail 
the  opposite.  The  point  of  interest  in  the  case  is  the  control 
of  a  union  over  its  members  by  use  of  fines.  The  strike  itself 
was  for  a  lawful  purpose  and  justifiable.  The  means  used 
in  carrying  on  the  strike  were  in  question.  In  the  words  of 
the  trial  judge: 

In  case  of  a  justifiable  strike,  has  the  contractor  the  right  to 
invoke  the  aid  of  the  court  to  prevent  the  labor  union  from 
imposing  a  fine  (which  the  court  has  found  to  be  coercive  in  its 
nature)  or  taking  action  to  impose  one  upon  one  or  more  of 
its  members  under  its  rules  to  induce  them  to  leave  the  con¬ 
tractor’s  employ  to  his  injury? 

It  is  of  more  than  incidental  interest  that  the  question 
of  the  imposition  of  fines  by  an  organization  upon  its  mem¬ 
bers  had  been  before  the  court  in  an  earlier  case,  where  the 
organizations  were  not  labor  unions  (Martell  v.  White). 
Certain  granite  manufacturers  had  formed  an  association, 
a  by-law  of  which  provided  that  any  member  having  busi¬ 
ness  transactions  with  any  other  such  manufacturer  of  the 
city  in  relation  to  granite  should,  for  each  such  transaction, 
contribute  to  the  expenses  of  the  association  from  $1.00 
to  $500.00,  the  amount  to  be  determined  by  the  association. 
By  means  of  fines  varying  from  $10.00  to  $100.00  the  plain¬ 
tiff’s  business  had  been  ruined.  The  court  in  that  case  had 
adjudged  that  the  coercion  of  members  by  fines  into  refus¬ 
ing  to  trade  with  plaintiff  was  not  consistent  with  com¬ 
petition.  Of  this  case  the  court  says: 

The  case  was  carefully  presented  by  counsel,  the  ques- 


UNIONISM— RIGHTS  OF  UNIONS 


19S 


tions  involved  were  regarded  as  important,  and  there  was  a 
difference  of  opinion  among  the  judges  who  sat  in  it.  It  was 
therefore  considered  at  great  length ;  and  the  conclusion  was 
reached  after  a  most  exhaustive  discussion  and  the  most  care¬ 
ful  deliberation.  It  stands  as  a  solemn  adjudication  by  this 
court  after  such  discussion  and  deliberation. 

The  case  had  been  referred  to  frequently  and  always  with 
satisfaction.  The  court  felt  the  controlling  influence  of  the 
former  opinion  and  rendered  its  decision  on  the  basis  of 
the  precedent.  Apparently  feeling  that  further  justification 
was  necessary  an  extended  discussion  of  the  principles  is 
entered  upon  in  the  opinion.  This  is  because  of  the 
dissenting  view  of  the  minority  who  think  that  the 
principle  laid  down  in  the  former  case  was  not  correct, 
or  if  correct,  was  not  applicable  to  the  case  at  bar. 
“  We  are  also  somewhat  influenced  [to  add  more]  by 
reason  of  the  importance  of  the  question  and  its  relation 
to  a  part  of  the  law  still  in  the  nebulous  but  clearing  stage.” 
The  essential  point  in  the  case  is  declared  to  be  that  the 
contention  is  not  between  the  party  imposing  and  the  party 
compelled  to  pay  the  fine.  It  is  between  the  part  imposing 
the  fine  and  a  third  party  asserting  himself  to  be  damaged 
by  its  imposition. 

Shortly  stated  the  case  is  this:  The  plaintiff’s  men  are  be¬ 
ing  coerced  by  threats  of  a  fine  to  leave  its  employ,  greatly 
to  its  injury,  the  fines  to  be  levied  in  accordance  with  the  by¬ 
laws  of  a  voluntary  association  of  which  the  proposed  victims 
are  members.  This  injury  to  the  plaintiff  is  intended  by  the 
defendants.  Has  the  plaintiff  any  standing  in  equity  to  an 
injunction  against  the  infliction  of  such  injury? 

The  opinion  then  contains  a  statement  in  general  terms 
of  the  rights  of  the  parties.  The  employer  has  a  right  to 
employ  whom  he  chooses,  the  right  to  a  free  labor  market. 


AMERICAN  COURTS  IN  LABOR  CASES 


196 

The  workmen  also  have  rights.  They  may  labor,  sell  their 
labor,  organize  to  improve  their  conditions,  make  appro¬ 
priate  by-laws  to  strengthen  their  organization.  The 
court  concludes  after  elaborating  them  at  some  length. 

But  not  much  progress  is  made  by  this  general  statement 
of  the  rights  of  the  respective  parties.  We  are  still  only  on 
the  skirmish  line.  ...  In  the  case  before  us  neither  the  right 
of  the  plaintiff  to  a  free  labor  market  nor  the  right  of  the 
union  to  impose  a  fine  upon  its  members  is  absolute.  Neither 
is  to  be  considered  apart  from  the  other,  or  without  reference 
to  any  other  conflicting  right,  whether  public  or  private;  but 
each  must  be  regarded  as  having  in  the  rules  of  human  con¬ 
duct  its  own  place  beyond  the  limits  of  which  it  must  not  go. 

So  far  as  the  application  of  these  principles  to  the  employer 
and  employee  is  concerned,  the  court  is  of  the  opinion  that 
the  parties  must  adjust  them  by  their  own  efforts,  keeping 
within  the  limits  established  by  law  and  applicable  im¬ 
partially  to  both. 

So  long  as  the  by-laws  of  a  union  relate  to  matters  in  which 
no  one  is  interested  except  the  association  and  its  members, 
and  violate  no  right  of  a  third  party  or  no  rule  of  public 
policy,  they  are  valid.  ...  It  cannot  be  successfully  con¬ 
tended,  however,  that  as  against  the  right  of  some  party  other 
than  the  association  and  its  members  an  act,  otherwise  a  vio¬ 
lation  of  the  third  party’s  rights,  is  any  less  a  violation  be¬ 
cause  done  by  some  member  in  obedience  to  a  by-law. 

The  principle  at  the  bottom  of  such  a  decision  is  this, 
namely:  An  interference  with  the  right  of  a  third  party  can¬ 
not  be  justified  upon  the  ground  that  the  intruder  is  acting  in 
accordance  with  an  agreement  between  him  and  some  other 
person.  In  a  word,  so  long  as  a  fine  is  imposed  for  the  guid¬ 
ance  of  members  in  matters  in  which  outside  parties  have  no 
interest,  or  in  which  there  is  no  violation  of  a  right  of  an 
outside  party,  then  no  such  party  can  complain.  But  when 


UNIONISM— RIGHTS  OF  UNIONS 


19  7 


the  right  of  such  a  party  is  invaded,  it  is  no  defense,  either  to 
the  person  fined  or  to  those  who  have  imposed  the  fine,  that 
the  invasive  act  was  done  in  accordance  with  the  by-laws  of 
an  association. 

[In  the  law  of  the  commonwealth  it  is  settled]  that  the 
flow  of  labor  to  the  employer  cannot  be  obstructed  by  inti¬ 
midation  or  coercion  produced  by  means  of  injury  to  per¬ 
son  or  property,  or  by  threats  of  such  injury  .  .  .  even 
though  the  ultimate  object  of  the  strike  be  legal.  There  can 
be  no  doubt  that  fining  is  one  method  of  injuring  a  man  in 
his  estate,  and  that  a  threat  to  fine  is  a  threat  of  such  an 
injury. 

The  next  step  in  the  argument  deals  with  the  effect  of 
organization;  “  when  the  intimidation  is  exerted  by  a  union 
upon  its  members  in  accordance  with  its  by-laws.”  On  this 
point  it  is  asserted  that 

it  can  make  no  difference  to  the  public  or  to  the  employer 
(who  in  this  case  is  the  other  party)  that  the  person  intimi¬ 
dated  is  or  is  not  a  member  of  the  society  intimidating.  In 
either  case  the  injury  is  the  same  and  is  from  the  same  cause, 
namely  intimidation.  The  workman  is  no  longer  free. 

To  show  that  the  member  of  the  union  is  not  free,  the 
following  view  is  expressed: 

If  it  be  said  that  the  member  fined  may  take  his  choice  either 
to  leave  the  organization  or  abide  by  its  rules  to  which  he  has 
before  assented,  and  that  where  there  is  a  choice  there  can 
be  no  coercion,  the  answer  is  that  in  almost  every  conceivable 
case  of  coercion  short  of  an  actual  overpowering  of  the  physi¬ 
cal  forces  of  the  victim  there  is  a  choice.  The  highwayman, 
who  presents  his  cocked  pistol  to  the  traveler  and  demands 
his  purse  under  pain  of  instant  death  in  case  of  refusal,  offers 
his  victim  a  choice.  He  may  either  give  up  his  purse  and 
live,  or  refuse  and  die.  In  Carew  v.  Rutherford  the  victim 
had  a  choice  either  to  pay  a  fine  or  take  the  consequences  of 


19S  AMERICAN  COURTS  IN  LABOR  CASES 

a  refusal.  And  so  the  member  of  a  labor  union  has  the 
choice  either  to  pay  the  fine  or  leave  the  union.  Is  it  difficult 
to  realize  what  that  choice  is  in  these  days  of  organized  labor? 
Is  it  too  much  to  say  that  many  times  it  is  very  difficult,  in¬ 
deed  practically  impossible,  for  a  workman  to  get  bread  for 
himself  and  his  family  by  working  at  his  trade  unless  he  is 
a  member  of  a  union?  It  is  true  he  has  a  choice  between 
paying  his  fine  and  not  paying  it,  but  is  it  not  frequently  a 
hard  one  ?  May  not  the  coercion  upon  him  sometimes  be  most 
severe  and  effective?  Such  is  not  a  free  choice.  And  a 
market  filled  with  such  men  is  not  a  reasonably  free  market. 
In  this  connection  the  language  of  Boutwell  v.  Marr  seems 
significant  and  appropriate :  “  The  law  cannot  be  compelled 
by  any  initial  agreement  of  an  associate  member  to  treat  him 
as  one  having  no  choice  but  that  of  the  majority,  nor  as  a 
willing  participant  in  whatever  action  may  be  taken.  The 
voluntary  acceptance  of  by-laws  providing  for  the  imposition 
of  coercive  fines  does  not  make  them  legal  and  collectable. 
.  .  .  The  law  sees  in  the  member  of  an  association  of  this 
character  both  the  authors  of  its  coercive  system  and  the  vic¬ 
tims  of  this  unlawful  pressure.  If  this  were  not  so,  men 
could  deprive  their  fellow's  of  established  rights,  and  evade 
the  duty  of  compensation  simply  by  working  through  an 
association.” 

In  considering  this  question  we  cannot  lose  sight  of  the 
great  power  of  organization.  It  should  be  taken  into  account 
when  one  is  considering  wffiere  the  line  should  be  drawn  be¬ 
tween  the  right  of  the  employer  to  a  free  market  and  the 
right  of  workmen  to  interfere  with  that  market  by  coercion 
through  the  rules  of  a  labor  union.  It  is  not  universally  true 
that  what  one  man  may  do  any  number  of  men  by  concerted 
action  may  do.  .  .  . 

This  organization  of  labor  to  better  the  condition  of  the 
laborer  is  natural  and  proper.  There  can  be  no  doubt  that 
it  is  the  most  effective  way,  perhaps  the  only  effective  way, 
in  which  as  against  the  organization  of  capital  the  rights  of 
the  laborer  can  be  adequately  protected.  In  many  ways  the 


UNIONISM— RIGHTS  OF  UNIONS 


199 


labor  unions  have  succeeded  in  bettering  the  condition  of 
the  laborer,  and  so  far  as  their  ultimate  intentions  and  the 
means  used  in  accomplishing  them  are  legal  they  are  entitled 
to  protection  to  the  extreme  limit  of  the  law. 

But  their  powers  must  not  be  so  far  extended  as  to  encroach 
upon  the  rights  of  others.  It  is  clear  that  if  the  power  to  in¬ 
timidate  by  fine  be  regarded  as  one  of  the  powers  which  la¬ 
bor  unions  may  rightfully  exercise,  then  the  right  to  a  free 
market  for  labor — nay,  even  the  right  of  the  laborer  to  be 
free — is  seriously  interfered  with,  to  the  injury  both  of  the 
public  and  the  employer  as  well  as  the  laborer. 

Finally  the  opinion  is  summed  up  in  the  following  con¬ 
clusion. 

A  majority  of  the  court  are  of  opinion  that  the  over¬ 
whelming  sense  of  the  thing  is  that  the  principle  that  the 
right  of  the  employer  is  not  subject  to  coercion  or  intimida¬ 
tion  by  injury  or  threats  of  injury  to  the  persons  or  property 
of  laborers  standing  in  the  market  to  meet  him,  should  apply 
to  the  coercion  and  intimidation  exerted  by  labor  unions  upon 
their  members  by  fines  or  threats  of  fines.  Any  other  con¬ 
clusion  is  inconsistent  with  the  existence  of  a  reasonably  free 
labor  market  to  which  both  the  employer  and  the  employee 
are  entitled. 

To  this  line  of  argument  and  conclusion  two  members 
of  the  court  did  not  agree.  Chief  Justice  Knowlton  and 
Justice  Sheldon  presented  a  dissenting  opinion  written  by 
the  latter. 

They  point  out  first  that  the  strike  is  conceded  to  be  a 
lawful  one.  That  being  admitted,  it  follows  that  the  de¬ 
fendants  have  the  right  to  seek  to  make  the  strike  success¬ 
ful  “  by  the  use  of  whatever  rightful  means  were  available 
to  them.”  As  to  the  rights  of  the  two  parties  the  general 
conception  is  the  same.  The  opinion  holds  that,  when  a 
conflict  arises: 


200 


AMERICAN  COURTS  IN  LABOR  CASES 


the  plaintiff’s  right  to  a  free  labor  market  is  not  only  not  a 
paramount  right,  but  it  is  and  must  be  subject  to  the  higher 
right  of  the  defendants  to  combine  and  to  carry  on  a  strike 
by  the  use  of  whatever  lawful  means  may  be  in  their  power; 
and  we  cannot  see  how  this  right  can  be  further  limited 
than  by  restricting  it  to  acts  which  are  not  forbidden  by  law, 
either  as  being  unlawful  in  themselves  or  at  variance  with  a 
sound  public  policy.  Accordingly,  the  question  now  to  be  de¬ 
cided  is  whether  we  can  say  that  the  members  of  a  labor 
union  have  no  right,  acting  in  conformity  with  rules  pre¬ 
viously  established,  to  impose  a  fine  upon  one  of  their  own 
members  if  he  goes  to  work  or  continues  to  work  for  an  em¬ 
ployer  against  whom  a  justifiable  strike  has  been  declared  in 
accordance  with  those  rules,  where  there  is  no  contractual 
right  or  duty  on  either  side  for  the  performance  of  such  work. 

If  we  are  right  in  what  thus  far  has  been  said,  the  answer 
to  this  question  must  depend  upon  whether  the  imposition 
of  such  a  fine  is  either  forbidden  by  some  rule  of  law  or  is 
found  to  be  inconsistent  with  some  rule  of  public  policy. 
But  in  our  opinion  neither  of  these  affirmations  can  be  made. 

The  right  of  all  voluntary  associations  to  establish  ap¬ 
propriate  by-laws,  “  not  only  for  their  own  internal  man¬ 
agement  but  also  to  regulate  the  conduct  of  their  members 
towards  each  other  and  in  matters  affecting  the  general  in¬ 
terests  of  the  body,”  is  next  asserted.  This  implies  the 
generally  recognized  right  to  enforce  obedience  to  said  by¬ 
laws.  That  these  general  rules  are  applicable  to  labor 
unions,  as  voluntary  associations,  is  not  only  beyond  ques¬ 
tion  but  that  there  is  a  special  significance  in  their  appli¬ 
cability  to  such  unions,  is  also  clear. 

The  very  purpose  for  which  they  are  created  makes  it 
highly  important  that  their  members  should  be  held  together 
by  the  strongest  possible  bonds,  so  as  to  work  with  absolute 
unanimity,  especially  in  the  time  of  a  trade  dispute  or  strike. 


UNIONISM— RIGHTS  OF  UNIONS 


201 


Pledges  and  promises  binding  all  the  members  are  desirable. 
Voluntary  agreements  to  abide  in  such  matters  by  the  will  of  a 
majority  of  the  members  under  a  coercive  pecuniary  in¬ 
fluence,  or  even  under  pain  of  expulsion,  cannot  be  objection¬ 
able.  Indeed,  the  right  of  labor  unions  to  enforce,  under 
penalty  of  fine  or  expulsion,  compliance  by  all  their  members 
with  rules  and  regulations  which  have  been  adopted  because 
deemed  by  a  sufficient  majority  to  be  for  the  common  good 
and  which  are  not  in  themselves  inappropriate  or  unlawful, 
is  necessary  to  their  continued  existence.  It  is  to  the  united 
action  of  all  their  members  that  such  organizations  owe  their 
strength  and  their  ability  to  accomplish  the  results  at  which 
they  aim.  Doubtless  persons  who  do  not  agree  in  the  desir¬ 
ability  of  those  results  or  in  the  wisdom  or  efficiency  of  the 
means  adopted  to  secure  them,  cannot  be  required  to  continue 
as  members  against  their  will,  any  more  than  they  could  have 
been  compelled  to  become  members  in  the  first  instance. 

It  is  of  the  very  essence  of  a  voluntary  organization  that 
membership  in  it  is  and  must  continue  to  be  itself  voluntary, 
and  this  must  be  so  on  both  sides  as  long  as  property  rights 
do  not  come  in  question.  (Cases  cited.)  So  long,  however, 
as  such  membership  continues  and  the  organization  still  serves 
the  purpose  for  which  it  was  created,  “  the  will  of  the  in¬ 
dividual  must,”  as  was  said  by  the  court  in  Wabash  R.  R. 
v.  Hannahan,  “consent  to  yield  to  the  will  of  the  majority, 
or  no  organization,  whether  of  society  into  government,  cap¬ 
ital  into  combination,  of  labor  into  coalition,  can  ever  be 
effectual.  The  individual  must  yield  in  order  that  the  many 
may  receive  a  greater  benefit.  The  right  of  labor  to  organize 
for  lawful  purposes  and  by  organic  agreement  to  subject  the 
individual  members  to  rules,  regulations  and  conduct  pre¬ 
scribed  by  the  majority,  is  no  longer  an  open  question  in 
the  jurisprudence  of  this  country.”  .  .  .  Indeed,  we  do  not 
understand  it  to  be  denied  that  those  members  of  the  unions 
who  declined  to  join  in  the  strike  which  was  ordered  were 
liable  to  expulsion  by  the  unions  acting  in  good  faith,  and  as  it 
has  been  found  that  the  defendants  are  pecuniarily  irrespon- 


202 


AMERICAN  COURTS  IN  LABOR  CASES 


sible,  payment  of  the  fines  threatened  could  have  been  en¬ 
forced  only  by  expulsion.  And  the  member  of  a  union  upon 
whom  such  a  fine  has  been  lawfully  imposed  in  accordance 
with  by-laws  to  which  he  has  himself  previously  assented, 
is  in  no  respect  in  the  predicament  of  a  highwayman’s  victim 
who  has  the  bare  option  of  parting  with  his  money  to  save 
his  life  or  of  losing  his  life  without  thereby  saving  his 
money.  The  situation  of  one  who  finds  himself  compelled 
to  choose  between  two  alternatives,  however  distasteful,  which 
he  has  brought  upon  himself  and*  neither  of  which  is  un¬ 
lawful,  is  in  no  way  comparable  to  that  of  one  who  is  com¬ 
pelled  by  wrongful  force  to  elect  between  submitting  to  one 
of  two  alternative  injuries,  both  of  which  are  unlawful.  An 
argument  which  rests  upon  such  a  comparison  is  without 
foundation. 

Nor  can  we  say  that  the  imposition  of  fines,  not  in  them¬ 
selves  unlawful  and  not  injurious  to  the  plaintiff  except  as 
they  restrict  an  inferior  right  by  the  lawful  exercise  of  a 
higher  right,  is  to  be  regarded  as  contrary  to  a  sound  public 
policy.  Gloomy  vaticinations  of  injurious  results  to  be 
apprehended  from  the  excessive  power  which  labor  unions 
may  acquire  by  their  combination  of  many  individuals  into 
one  body  do  not  greatly  impress  us.  The  power  of  capital 
hitherto  has  not  been  found  insufficient  to  prevent  other  than 
proper  advantages  from  being  gained  by  the  representatives 
of  labor,  nor  does  it  seem  to  us  likely  to  be  insufficient  in  the 
future.  If  it  shall  appear  that  there  is  such  a  danger,  yet  we 
cannot  alter  the  law  by  denying  to  labor  unions  the  rights  and 
powers  which  the  law  gives  to  all  lawful  associations. 

The  law  does  not  do  so  vain  a  thing  as  to  allow  the  forma¬ 
tion  of  labor  unions  and  to  declare  their  right  to  initiate  and 
by  lawful  means  to  carry  on  a  justifiable  strike,  and  then  re¬ 
fuse  them  the  use  of  the  only  practical  means  by  which  their 
acknowledged  rights  can  be  secured.  .  .  .  The  books  are  full 
of  cases  recognizing  the  right  of  labor  unions  to  enforce  their 
rules  upon  their  members  in  a  reasonable  way.  There  are 
but  few  cases  that  discuss  by-laws  authorizing  the  imposi- 


UNIONISM-RIGHTS  OF  UNIONS 


203 


tion  of  fines  for  a  violation  of  rules ;  for  their  validity  is 
almost  universally  conceded.  It  is  believed  that  most  of  the 
many  thousand  labor  unions  in  this  country  and  Great  Britain 
have  such  a  rule  or  by-law,  under  which  they  are  acting  to-day 
without  complaint  from  any  one.  In  such  action  they  are 
in  our  judgment  simply  adopting  a  principle  which  is  of  gen¬ 
eral  application  for  similar  purposes. 

It  is  true  of  course  that  no  man  lawfully  can  be  compelled 
at  the  mere  dictation  of  other  men  to  abstain  from  working  for 
such  prices  and  during  such  periods  of  labor  as  he  may  be 
willing  to  accept;  but  it  is  no  less  true  that  when  one  chooses 
voluntarily  to  unite  with  others  of  the  same  craft  in  forming 
an  organization  for  the  purpose  of  bringing  about  by  the 
united  action  of  all  its  members  more  favorable  conditions  of 
employment,  he  is  bound,  so  long  as  he  desires  to  remain  a 
member  of  that  organization,  to  submit  within  certain  limits 
his  own  freedom  alike  of  judgment  and  of  action  to  the  judg¬ 
ment  of  his  associates,  and  to  conform  his  conduct  to  that 
standard  which  they  shall  have  agreed  to  be  for  the  best  in¬ 
terest  of  all  and  of  each.  Unity  of  action  would  be  impos¬ 
sible  upon  any  such  terms.  Accordingly,  all  the  members  of 
such  a  body  have  a  right  to  expect,  and  by  reasonable  rules 
and  appropriate  penalties  to  provide  for,  the  observance  of 
such  terms.  Those  who  desire  to  employ  the  members  of  such 
organizations  must  expect  this  to  be  the  case,  and  have  no 
right  to  complain  of  the  requirements  of  such  rules,  and  of 
their  reasonable  enforcement  upon  each  other  by  the  members 
of  such  organizations.  To  this  extent,  the  employer’s  relative 
right  to  a  free  labor  market  must  yield  to  the  higher  right  of 
the  laborers  to  combine  and  to  act  in  unison  for  the  purpose 
of  obtaining  better  terms  from  their  employer.  In  other 
words,  the  general  right  of  an  employer  to  go  into  the  market 
to  hire  laborers  does  not  deprive  a  union,  in  carrying  on  a  law¬ 
ful  strike,  of  the  right  to  use  upon  its  individual  members, 
for  the  purpose  of  keeping  them  up  to  the  performance  of 
their  duty  as  such  members,  all  the  influences  that  any  other 
organization  properly  could  use,  including  the  imposition  of 


204 


AMERICAN  COURTS  IN  LABOR  CASES 


fines.  The  right  to  use  such  influences  is  an  independent  and 
paramount  right.  The  interests  of  the  employer  are  subor¬ 
dinate  to  this  right,  and  must  yield  to  it. 

Coming  more  directly  to  the  point  of  difference,  the  dis¬ 
senting  opinion  then  asserts : 

Doubtless  this  power  of  discipline  by  fines  or  by  the  ulti¬ 
mate  penalty  of  expulsion  cannot  properly  be  resorted  to  for 
the  purpose  of  requiring  conduct  intrinsically  unlawful,  or  for 
the  purpose  of  compelling  a  minority  member  to  join  in  action 
the  ultimate  object  of  which  is  to  damage  a  third  person.  Just 
as  the  rules  of  an  association  cannot  protect  its  members  who 
have  done  actionable  injury  to  a  third  person,  so  a  plaintiff 
who  has  suffered  injury  by  the  enforcement  of  its  rules  and 
penalties  upon  its  own  members  for  a  wrongful  purpose  may 
properly  be  allowed  a  remedy.  If  a  strike  should  be  de¬ 
clared  for  an  unlawful  object,  it  would  be  illegal  because  of 
its  object;  and  all  the  members  trying  to  maintain  it  by  direct 
or  indirect  action  against  the  employer  might  be  liable  in 
damages  and  subject  to  injunction.  They  would  be  so  liable 
just  as  much  without  a  by-law  authorizing  the  imposition  of 
fines  as  with  one.  .  .  .  But  if  the  object  of  a  strike  is  legal 
and  commendable,  an  effort  to  keep  the  members  together  by 
the  imposition  of  fines,  if  need  be,  under  a  by-law  previously 
adopted,  is  also  legal  and  commendable. 

Summing  up  the  argument,  the  opinion  concludes : 

What  seems  to  us  the  fallacy  of  the  majority  opinion  is  its 
failure  to  act  upon  the  fact  that  the  strike  in  this  case  was 
upon  justifiable  grounds,  and  of  course  was  lawful.  It  fol¬ 
lows  that  the  action  of  each  member  of  the  union  in  trying  to 
maintain  the  strike,  without  force,  or  wrongful  coercion  or 
intimidation  exercised  upon  any  one,  was  justifiable  and  law¬ 
ful.  It  was  not  an  interference  with  the  rights  of  the  plain¬ 
tiff,  because,  as  we  have  seen,  the  right  of  an  employer  to 
conduct  his  business  without  interference  in  the  labor  market 


UNIONISM— RIGHTS  OF  UNIONS 


205 


is  subordinate  to  the  right  of  his  employees  to  strike  and  to 
maintain  the  strike  in  a  lawful  manner.  As  against  this  right 
of  the  employees  the  employer  has  no  right  to  have  their 
labor  flow  to  him  uninfluenced  or  undiverted. 

Justice  Loring  also  wrote  an  opinion.  He  agreed  with 
the  decision  made  by  the  majority  of  the  court.  But  his 
reasons  for  doing  so  were  solely  in  the  fact  that  the  pre¬ 
vious  decision  had  been  made  on  that  principle  and  that 
such  decision  should  be  binding.  The  court  should  not  re¬ 
verse  itself  unless  for  reasons  more  weighty  than  any  that 
had  been  offered  in  the  dissenting  opinion.  He  asserts  that 
no  harm  can  result  if  the  decision  made  is  confined  to  the 
points  decided  and  is  not  extended  to  broader  propositions. 
These  broader  propositions  that  he  has  in  mind  are  three 
in  number  and  are  stated  as  follows : 

First,  that  employees  have  a  right  to  combine  to  better  their 
condition  and  to  do  all  acts  (not  unlawful)  necessary  to  make 
the  combination  an  efficient  one;  secondly,  that  they  have  a 
right  to  strike  to  gain  that  end  if  their  demands  therefor  are 
not  granted  by  their  employer,  and  to  do  all  acts  (not  unlaw¬ 
ful)  necessary  to  make  the  strike  successful;  and,  third,  that 
these  rights  of  the  employees  are  superior  to  the  right  of  the 
employer  to  have  a  free  flow  of  labor  in  his  business. 

There  is  nothing  in  the  decision  in  Martell  v.  White,  or  in 
the  decision  in  the  case  at  bar,  which  calls  in  question  these 
propositions  or  any  one  of  them.  .  .  . 

In  my  opinion  the  case  at  bar  is  covered  by  the  decision 
in  Martell  v.  White,  that  decision  ought  not  to  be  over¬ 
ruled  in  this  case,  and  the  plaintiff  is  entitled  to  the  decree 
stated  in  the  opinion  of  a  majority  of  the  court. 

PROBABLE  EXPECTANCY 

The  relations  of  workingmen  to  each  other  and  to  em¬ 
ployers  were  stated  in  somewhat  new  terms  by  Vice  Chan- 


206 


AMERICAN  COURTS  IN  LABOR  CASES 


cellor  Stevenson  of  New  Jersey.  The  term  used  by  the 
Justice  in  his  opinion  is  “  probable  expectancy.”  The  idea 
is  expanded  in  an  opinion  of  considerable  length.  The  im¬ 
portant  parts  are  inserted  in  the  Justice’s  own  words. 

The  underlying  right  in  this  particular  case  under  consider¬ 
ation,  which  seems  to  be  coming  into  general  recognition  as 
the  subject  of  protection  by  courts  of  equity  through  the  in¬ 
strumentality  of  an  injunction,  appears  to  be  the  right  to  enjoy 
a  certain  free  and  natural  condition  of  the  labor  market,  which 
in  a  recent  case  in  the  house  of  lords  was  referred  to,  in  the 
language  of  Lord  Ellenborough,  as  a  “  probable  expectancy.” 
This  underlying  right  has  otherwise  been  broadly  defined  or 
described  as  the  right  which  every  man  has  to  earn  his  living, 
or  to  pursue  his  trade  or  business,  without  undue  interference, 
and  might  otherwise  be  described  as  the  right  which  every 
man  has,  whether  employer  or  employee,  of  absolute  freedom 
to  employ  or  to  be  employed.  The  peculiar  element  of  this 
perhaps  newly  recognized  right  is  that  it  is  an  interest  which 
one  man  has  in  the  freedom  of  another.  In  the  case  before 
this  court,  the  Jersey  City  Printing  Company  claims  the  right 
not  only  to  be  free  in  employing  labor,  but  also  the  right  that 
labor  shall  be  free  to  be  employed  by  it,  the  Jersey  City 
Printing  Company.  A  large  part  of  what  is  most  valuable  in 
modern  life  seems  to  depend  more  or  less  directly  upon  “  prob¬ 
able  expectancies.”  When  they  fail,  civilization  as  at  present 
organized  may  go  down.  As  social  and  industrial  life  de- 
velopes  and  grows  more  complex,  these  “  probable  expec¬ 
tancies  ”  are  bound  to  increase.  It  would  seem  to  be  inevit¬ 
able  that  courts  of  law,  as  our  system  of  jurisprudence  is 
evolved  to  meet  the  growing  wants  of  an  increasingly  complex 
social  order,  will  discover,  define,  and  protect  from  undue  in¬ 
terference  more  of  these  “  probable  expectancies.”  In  under¬ 
taking  to  ascertain  and  define  the  rights  and  remedies  of 
employers  and  employees  in  respect  of  their  “  probable  ex¬ 
pectancies  ”  in  relation  to  the  labor  market,  it  is  well  not  to 
lose  sight  altogether  of  any  other  analogous  rights  and 


UNIONISM— RIGHTS  OF  UNIONS 


20/ 


remedies  which  are  based  upon  similar  “  probable  expec¬ 
tancies/'  It  will  probably  be  found  in  the  end,  I  think,  that 
the  natural  expectancy  of  employers  in  relation  to  the  labor 
market,  and  the  natural  expectancies  of  merchants  in  respect 
to  the  merchandise  market,  must  be  recognized  to  the  same 
extent  by  courts  of  law  and  courts  of  equity,  and  protected 
by  substantially  the  same  rules.  It  is  freedom  in  the  market, 
freedom  in  the  purchase  and  sale  of  all  things,  including  both 
goods  and  labor,  that  our  modern  law  is  endeavoring  to  insure 
to  every  dealer  on  either  side  of  the  market.  The  valuable 
thing  to  merchant  and  to  customer,  to  employer  and  to  em¬ 
ployee,  manifestly,  is  freedom  on  both  sides  of  the  market. 
.  .  .  It  is,  however,  the  right  of  the  employer  and  employee 
to  a  free  labor  market  that  is  the  particular  thing  under  con¬ 
sideration  in  this  case.  .  .  .  Our  law  in  its  recent  development 
undertakes  to  insure  to  him  (an  employer),  not  only  that  he 
may  employ  whom  he  pleases,  but  that  all  who  wish  to  be 
employed  by  him  may  enter  into  and  remain  m  such  employ¬ 
ment  freely,  without  threats  of  harm,  without  unreasonable 
molestation  and  annoyance  from  the  words,  actions,  or  other 
conduct  of  any  other  persons  acting  in  combination.  What  is 
the  measure  or  test  by  which  the  conduct  of  a  combination  of 
persons  must  be  judged  in  order  to  determine  whether  or  not 
it  is  an  unlawful  interference  with  freedom  of  employment 
in  the  labor  market,  and  as  such  injurious  to  an  employer  of 
labor  in  respect  of  his  “  probable  expectancies,”  has  not  as 
yet  been  clearly  defined.  Perhaps  no  better  definition  could 
be  suggested  than  that  which  may  be  framed  by  conveniently 
using  that  important  legal  fictitious  person  who  has  taken 
such  a  large  part  in  the  development  of  our  law  during  the 
last  50  years,  the  reasonably  prudent,  reasonably  courageous, 
and  not  unreasonably  sensitive  man.  ...  A  man  may  not  be 
liable  to  an  action  for  slander  for  calling  a  workman  a 
“  scab  ”  in  the  street,  but  if  100  men  combine  to  have  this 
workman  denounced  as  a  “  scab  ”  in  the  street,  or  followed  in 
the  streets  to  and  from  his  home,  so  as  to  attract  public 
attention  to  him,  and  place  him  in  an  annoyingly  conspicuous 


20S 


AMERICAN  COURTS  IN  LABOR  CASES 


position,  such  conduct — the  result  of  such  combination — is 
held  to  be  an  invasion  of  the  “  probable  expectancy  ”  of  his 
employer  or  contemplated  employer,  an  invasion  of  this  em¬ 
ployer’s  right  to  have  labor  flow  freely  to  him.  Without  any 
regard  to  the  rights  and  remedies  which  the  molested  work¬ 
man  may  have,  the  injunction  goes,  at  the  suit  of  the  em¬ 
ployer,  to  protect  his  “  probable  expectancy,” — to  secure  free¬ 
dom  in  the  labor  market  to  employ  and  to  be  employed,  upon 
which  the  continuance  of  his  entire  industry  may  depend. 

I  think  it  is  safe  to  say  that,  all  through  this  development 
of  strike  law  during  the  last  decade,  no  principle  becomes  es¬ 
tablished  which  does  not  operate  equally  upon  both  employer 
and  employee.  The  rights  of  both  classes  are  absolutely  equal 
in  respect  of  all  these  probable  expectancies.”  An  operator 
upon  printing  machines  has  a  right  to  offer  his  labor  freely 
to  any  of  the  printing  shops  in  Jersey  City.  These  shops 
may  all  combine  to  refuse  to  employ  him  on  account  of  his 
race,  or  membership  in  a  labor  union,  or  for  any  other  reason, 
or  for  no  reason,  precisely  as  20  employees  in  one  print¬ 
ing  shop  may  combine,  and  arbitrarily  refuse  to  be  further 
employed  unless  the  business  is  conducted  in  accordance  with 
their  views.  But,  in  the  case  of  the  operative  seeking  em¬ 
ployment,  he  has  a  right  to  have  the  action  of  the  masters 
of  the  printing  shops  in  reference  to  employing  him  left  ab¬ 
solutely  free.  If,  after  obtaining  or  seeking  to  obtain  em¬ 
ployment  in  a  shop,  the  master  of  that  shop  should  be  sub¬ 
jected  to  annoyances  and  molestation  instigated  by  the  pro¬ 
prietors  of  other  printing  shops,  who  combine  to  compel,  by 
such  molestation  and  annoyance,  this  one  master  printer, 
against  his  will  and  wish,  to  exclude  the  operative  from  em¬ 
ployment,  this  operative,  in  my  judgment,  would  have  a  right 
to  an  action  at  law  for  damages,  and  would  have  a  right  to 
an  injunction  if  his  case  presented  the  other  ordinary  con¬ 
ditions  upon  which  injunctions  issue.  But  the  common-law 
courts  have  not  had  time  to  speak  distinctly  on  this  subject 
as  yet,  and  it  is  necessary  to  be  cautious  in  dealing  with  a 
subject  in  which  both  courts  of  law  and  courts  of  equity  as 


UNIONISM— RIGHTS  OF  UNIONS 


2  09 


yet  are  feeling  their  way.  I  think  that  the  leading  principle 
enforced  in  the  restraining  order  in  this  case  is  not  incon¬ 
sistent  with  any  authorities  which  control  this  court.  This 
principle  is  that  a  combination  of  employers  or  a  combination 
of  employees,  the  object  of  which  is  to  interfere  with  the 
freedom  of  the  employer  to  employ,  or  of  the  employee  to  be 
employed  (in  either  of  which  cases  there  is  an  interference 
with  the  enjoyment  of  a  “  probable  expectancy,”  which  the 
law  recognizes  as  something  in  the  nature  of  property),  by 
means  of  such  molestation  or  personal  annoyance  as  would  be 
liable  to  coerce  the  person  upon  whom  it  was  inflicted,  as¬ 
suming  that  he  is  reasonably  courageous  and  not  unreasonably 
sensitive,  to  refrain  from  employing  or  being  employed,  is 
illegal,  and  founds  an  action  for  damages  on  the  part  of  any 
person  knowingly  injured  in  respect  of  his  “  probable  expec¬ 
tancy  ”  by  such  interference,  and  also,  when  the  other  neces¬ 
sary  conditions  exist,  affords  the  basis  of  an  injunction  from 
a  court  of  equity. 

Four  years  later  in  Booth  v.  Burgess,  Vice  Chancellor 
Stevenson  refers  to  this  opinion,  saying :  “  My  opinion  in 
that  case,  though  hurriedly  formulated,  was  the  result  of  a 
very  careful  examination  and  consideration  of  the  authori¬ 
ties.”  The  right  to  a  free  market  is  characterized  as  a  pri¬ 
mary  legal  right  belonging  to  the  complainant,  and  is  one 
of  three  rights  in  the  case.  The  three  rights  are  ( 1 )  “  the 
right  in  a  contract,”  (2)  “  the  right  to  contract,”  (3)  “  the 
righ  to  a  free  market,”  that  is  “  the  right  of  every  dealer,  in 
the  full  enjoyment  of  his  right  to  contract,  to  have  all  other 
possible  dealers  with  him  left  free  to  deal  or  not  as  they  may 
voluntarily  elect.  Thus  recognition  is  accorded  to  the  ‘  in¬ 
terest  which  one  man  has  in  the  freedom  of  another.’  ” 

The  idea  is  referred  to  by  Judge  Hammond  in  the  Will- 
cutt  case,  already  fully  reviewed.  That  the  opinion  is  in¬ 
fluenced  by  the  statement  of  Vice  Chancellor  Stevenson  ap¬ 
pears  in  the  reference  made  to  the  rights  of  the  plaintiff. 
Says  Judge  Hammond: 


210 


AMERICAN  COURTS  IN  LABOR  CASES 


It  is  to  be  premised,  that  the  right  which  the  plaintiff  seeks 
to  have  protected  against  the  acts  of  the  defendants  arises 
from  no  contract  or  statute,  but  out  of  the  nature  of  things. 
It  is  one  of  the  large  body  of  rights  which  have  their  founda¬ 
tion  in  the  fitting  necessities  of  civilized  society.  It  is  the 
common  law  right  to  a  reasonably  free  labor  market.  Vice 
Chancellor  Stevenson,  in  speaking  of  it,  says  it  has  been  called 
a  “  probable  expectancy  ”  and  describes  it  as  “  the  right  which 
every  man  has  to  earn  his  living  or  pursue  his  trade  without 
undue  interference.” 

What  is  to  be  the  future  of  this  idea,  it  is  of  course  not 
possible  to  state.  The  references  to  it  since  its  first  appear¬ 
ance  eight  years  ago  have  been  very  few,  the  ones  just 
referred  to  being  the  leading  ones.  Yet  it  is  of  significance 
in  its  possibilities.  Its  importance  will  depend  upon  the 
particular  direction  that  is  given  to  its  development  in  its 
practical  applications. 


CHAPTER  XII 


Special  Topics 

In  addition  to  the  foregoing  general  topics  there  are 
others  that  are  of  no  small  importance,  though  they  come  in 
for  discussion  in  the  opinions  only  incidentally. 

I 

INTIMIDATION 

What  constitutes  intimidation  is  always  a  perplexing 
question  for  the  court  to  answer.  Much  depends  upon  the 
point  of  view  taken  by  the  judge  and  much  also  upon  his 
individuality.  This  latter  difference  is  emphasized  in  the 
opinion  in  State  v.  Van  Pelt. 

To  a  timid,  conservative  judicial  mind  trained  to  regard  even 
the  slightest  disturbance  of  such  forces  as  portending  danger 
to  the  peace  of  the  state,  “  intimidation  would  doubtless 
include  many  acts  that  would  not  come  within  its  meaning 
to  a  different  type  of  judicial  mind  believing  that  the  safety 
and  highest  interest  of  the  state  are  promoted  by  the  freest 
possible  play  of  mind  and  action  in  trade  competition. 

Some  instances  cited  from  various  opinions  will  illustrate 
the  different  views.  Justice  Brewer  in  United  States  v. 
Kane  said : 

I  have  no  doubt  that  some  men,  who  are  excessively  bold, 
might  have  laughed  at  [the  demonstration]  and  waited,  be¬ 
lieving  that  no  personal  violence  would  be  used ;  but  men  are 
not  all  equally  bold  and  courageous ;  the  average  man  has  a 

21 1 


212 


AMERICAN  COURTS  IN  LABOR  CASES 


feeling  that  it  is  his  duty  to  regard  his  personal  safety ;  we  all 
know  that,  and  we  act  upon  that  presumption.  .  .  .  Every 
man  knows  that  ordinarily  prudent  men  are  not  going  to  risk 
their  personal  safety  when  there  is  nothing  to  be  gained  by 
it.  .  .  .  Everyone  understands  that  these  men  felt  overawed, 
intimidated,  and  quit  work,  not  because  they  wanted  to, — 
some  of  them,  at  least, — but  because  they  felt  that  their  per¬ 
sonal  safety,  personal  prudence,  required  them  to  do  it.  It 
would  be,  as  it  seems  to  me,  blinding  my  eyes  to  obvious  facts 
to  say  that  there  was  not  intimidation. 

Vice  Chancellor  Green  of  New  Jersey  (Barr  v.  Trades 
Council)  admitted  that  in  the  case  before  him  there  was 

no  public  disturbance,  no  physical  injury,  no  direct  threats 
of  personal  violence,  or  of  actual  attack  on  or  destruction  of 
tangible  property,  as  a  means  of  intimidation  or  coercion. 
But,  I  do  not  understand  that  intimidation  .  .  .  necessarily 
presupposes  personal  injury  or  the  fear  thereof.  The  clear 
weight  of  authority  undoubtedly  is  that  a  man  may  be  intimi¬ 
dated  into  doing,  or  refraining  from  doing,  by  fear  of  loss  of 
business,  property,  or  reputation,  as  well  as  by  dread  of  loss  of 
life,  or  injury  to  health  or  limb;  and  the  extent  of  this  fear 
need  not  be  abject,  but  only  such  as  to  overcome  his  judg¬ 
ment,  or  induce  him  not  to  do  or  to  do  that  which  otherwise 
he  would  have  done  or  have  left  undone. 

Judge  McPherson,  United  States  District  Judge,  writing 
the  opinion  in  Atchison  Railway  Co.  v.  Gee,  insists  upon 
the  following  interpretation. 

The  argument  seems  to  be  that  anything  short  of  physical 
violence  is  lawful.  One  man  can  be  intimidated  only  when 
knocked  down.  But  the  peaceful,  law-abiding  man  can  be  and 
is  intimidated  by  gesticulations,  by  menaces,  by  being  called 
harsh  names,  and  by  being  followed,  or  compelled  to  pass  by 
men  known  to  be  unfriendly.  Perhaps  such  a  man  may  not 
be  a  bully,  but  is  frail  in  size  and  strength,  or  he  may  be  a 


SPECIAL  TOPICS 


213 


timid  man ;  but  such  a  man  is  just  as  much  entitled  to  go 
and  come  in  quiet,  without  even  mental  disturbance,  as  is  the 
man  afraid  of  no  one  and  able  with  or  without  weapons  to 
cope  with  all  comers.  The  frail  man,  or  the  man  who  shuns 
disturbances,  or  the  timid  man,  must  be  protected,  and  the 
company  has  the  right  to  employ  such. 

United  States  District  Judge  Sanborn  draws  the  follow¬ 
ing  distinction : 

I  understand  the  word  intimidation  to  denote  two  kinds  of 
coercion:  (1)  A  threat  by  word  or  act  of  an  individual,  or 
by  a  combination  of  persons,  to  do  something  unlawful,  rea¬ 
sonably  calculated  to  compel  the  person  threatened  to  do  or  not 
to  do  something;  and  (2)  request  or  persuasion  by  or  on  be¬ 
half  of  a  combination  of  persons  to  do  or  not  to  do  some¬ 
thing,  resulting  in  coercion  of  the  will  from  the  mere  force  of 
numbers.  In  the  first  case  the  nature  of  the  act,  and  the 
coercion,  determine  liability;  in  the  second  the  conspiracy  or 
concerted  act  and  the  coercion  determine  it.  A.  threatens  B. 
with  assault  unless  he  quits  work,  and  thus  coerces  him.  A 
number  of  men,  representing  themselves  and  a  large  number, 
request  B.  to  quit  work,  and  by  the  force  of  numbers  coerce 
him  to  do  so.  Civil  liability  follows  in  both  cases — in  the 
first,  from  the  nature  of  the  act  threatened;  in  the  second 
from  the  coercion  by  force  of  numbers.  (Allis  Chalmers 
Case.) 

A  modified  view  is  expressed  by  Justice  Holmes  in  writing 
a  dissenting  opinion  while  on  the  Massachusetts  bench  in 
Vegelahn  v.  Guntner. 

I  pause  here  to  remark  that  the  word  “  threats  ”  often  is 
used  as  if,  when  it  appeared  that  threats  had  been  made,  it 
appeared  that  unlawful  conduct  had  begun.  But  it  depends 
on  what  you  threaten.  As  a  general  rule,  even  if  subject  to 
some  exceptions,  what  you  may  do  in  a  certain  event  you  may 
threaten  to  do — that  is,  give  warning  of  your  intention  to  do 


214 


AMERICAN  COURTS  IN  LABOR  CASES 


— in  that  event,  and  thus  allow  the  other  person  the  chance 
of  avoiding  the  consequence.  So,  as  to  “  compulsion/’  it 
depends  on  how  you  compel.”  So  as  to  “  annoyance  ”  or 
“  intimidation.” 

Chief  Justice  Parker  enters  into  the  elaboration  of  this 
point  at  some  length  in  the  Cumming  •  Case.  He  thinks 
that  much  more  importance  had  been  attached  to  the  acts 
than  would  have  been  “  had  not  the  draftsman  character¬ 
ized  the  notice  given  to  the  employers  by  the  associations  of 
their  intention  to  strike  as  ‘  threats.’  ”  The  case  was  one, 
as  the  opinion  goes  on  to  state,  in  which  certain  men  wanted 
to  place  their  associates  in  positions  held  by  non-union  men. 

They  set  about  doing  it  in  a  perfectly  lawful  way.  They 
determined  that  if  it  were  necessary  they  would  bear  the 
burden  and  expense  of  a  strike  to  accomplish  that  result,  and 
in  so  determining  they  were  clearly  within  their  rights,  as 
all  agree.  .  .  .  Instead  of  taking  that  course,  they  chose  to 
inform  the  contractors  of  their  determination,  and  the  rea¬ 
son  for  it.  It  is  the  giving  of  this  information — a  simple 
notification  of  their  determination,  which  it  was  right  and 
proper  and  reasonable  to  give — that  has  been  characterized 
as  “  threats  ”  by  the  special  term,  and  which  has  led  to  no 
inconsiderable  amount  of  misunderstanding  since.  But  the 
sense  in  which  the  word  was  employed  by  the  court  is  of  no 
consequence,  for  the  defendant  associations  had  the  absolute 
right  to  threaten  to  do  that  which  they  had  the  right  to  do. 
Having  the  right  to  insist  that  plaintiff’s  men  be  discharged, 
and  defendants’  men  put  in  their  place,  if  the  services  of  the 
other  members  of  the  organization  were  to  be  retained,  they 
also  had  the  right  to  threaten  that  none  of  their  men  would 
stay  unless  their  members  could  have  all  the  work  there 
was  to  do. 

Against  this  view  may  be  stated  the  opinion  of  Judge 
Wiswell  of  Maine  (Perkins  v.  Pendleton). 


SPECIAL  TOPICS 


215 


We  think  that  the  important  question  in  an  act  of  this  kind 
[securing  the  discharge  of  an  employee]  is  as  to  the  nature 
of  the  defendant’s  act,  and  the  means  adopted  by  him  to  ac¬ 
complish  his  purpose.  Merely  to  induce  another  to  leave  an 
employment,  or  to  discharge  an  employee,  by  persuasion  or 
argument,  however  whimsical,  unreasonable,  or  absurd,  is  not, 
in  and  of  itself,  unlawful,  and  we  do  not  decide  that  such 
interference  may  become  unlawful  by  reason  of  the  de^ 
fendant’s  malicious  motives,  but  simply  that  to  intimidate  an 
employer  by  threats,  if  the  threats  are  of  such  a  character  as 
to  produce  this  result,  and  thereby  cause  him  to  discharge  an 
employee  whom  he  desired  to  retain,  and  would  have  retained, 
except  for  such  unlawful  threats,  is  an  actionable  wrong. 

II 

ABSOLUTE  AND  RELATIVE  RIGHTS 

In  many  cases  that  come  before  the  courts  the  essential 
point  lies  in  the  determination  of  the  relation  that  shall 
exist  between  “  rights.”  When  a  workman  is  acting 
clearly  within  his  “  right,”  there  is  no  problem  in  the 
case.  When  an  employer  is  so  acting  there  is  again  no 
problem.  When,  however,  each  claims  to  be  within  his 
“  right  ”  and  in  acting  accordingly  a  deadlock  is  brought 
about  in  the  industrial  field,  then  there  is  a  problem  and 
a  very  important  one.  The  effort  to  adjust  the  “  right  ” 
of  the  workman  to  the  “  right  ”  of  the  employer  has  led 
to  the  recognition  of  some  “  rights  ”  as  of  more  importance 
than  others.  Thus  there  appear  in  the  opinions  such  ex¬ 
pressions  as  “  absolute  rights  ”  or  “  primary  rights  ”  and 
“  relative  rights  ”  or  “  secondary  rights.”  The  chief  diffi¬ 
culty  does  not  arise  in  adopting  such  a  schedule  of  classi¬ 
fication.  It  comes  in  classifying  rights  as  “  absolute  ”  or 
“  relative,”  “  primary  ”  or  “  secondary,”  after  such  a 
schedule  has  been  adopted.  It  is  comparatively  easy  to 
agree  that  some  “  rights  ”  are  more  important  than  others, 


2 16 


AMERICAN  COURTS  IN  LABOR  CASES 


and  to  adopt  some  expression  that  will  indicate  this  rela¬ 
tion.  But  it  is  not  so  easy  to  agree  upon  the  question  as 
between  the  employer  and  his  striking  employees  whether 
the  “  rights  ”  of  the  strikers  are  superior  or  inferior  to 
those  against  whom  the  strike  has  been  called.  Some  of 
the  judges  have  adopted  quite  positive  views,  as  is  shown 
in  the  opinions,  while  others  seem  not  so  certain.  A 
further  difficulty  arises  when  it  is  found  that  the  more  posi¬ 
tive  judges  are  not  in  agreement  among  themselves. 

The  opinion  of  Vice  Chancellor  Stevenson  in  the  Jersey 
City  Printing  Case  has  been  elsewhere  referred  to  and 
quoted.  This  opinion  places  emphasis  upon  the  right  to  a 
free  market.  It  is  there  spoken  of  as  the  right  that  every 
man  has  “  of  absolute  freedom  ”  to  employ  or  to  be  em¬ 
ployed.  In  a  later  opinion  this  judge  referred  to  this  as  a 
“  primary  legal  right,”  using  the  expression :  “  The  primary 
legal  right  which  it  seems  to  me  should  be  recognized  as 
belonging  to  the  complainant  in  this  case  may  be  defined  or 
described  as  the  right  to  a  free  market.” 

In  the  same  opinion  (Booth  v.  Burgess)  the  idea  of 
absolute  rights  is  expressed  more  at  length  as  follows. 

We  must  bear  in  mind  at  every  stage  two  principles  which 
I  think  at  the  present  day  are  established  beyond  question. 
The  first  of  these  principles  is  the  absolute  right  of  all  men 
to  contract  or  refrain  from  contracting,  which  is  one  of  the 
rights  hereinbefore  enumerated.  The  motives  which  actuate 
a  man  in  refraining  from  making  a  contract  in  relation  to 
labor  or  merchandise  or  anything  else  are  absolutely  beyond 
all  inquiry  or  challenge.  .  .  .  The  right  to  refrain  from  con¬ 
tracting  is  an  absolute  right,  which  every  man  can  exercise 
justly  or  unjustly,  for  a  good  purpose  or  for  a  bad  purpose, 
“  maliciously,”  in  the  popular  sense  of  the  term,  or  benevo¬ 
lently.  The  second  principle  to  keep  in  view  is  not  at 
present  universally  recognized  as  sound  law,  viz.,  that  men 


SPECIAL  TOPICS 


217 


have  an  absolute  right  to  act  in  voluntary  combination  with 
respect  to  contracting  or  refraining  from  contracting.  ...  It 
seems  to  me  that  the  settled  American  doctrine,  apart  from  all 
recent  statutes,  is  that  all  dealers  in  the  market,  whether  in 
merchandise  or  in  labor,  on  each  side  of  the  market,  have  an 
absolute  right  to  combine  voluntarily  to  concurrently  exercise 
their  several  rights  to  refrain  from  contracting  if  they  see 
fit  to  do  so,  however  immoral  their  motives  may  be.  If  this 
is  not  good  law,  then  the  right  to  refrain  from  contracting  is 
subject  to  a  most  extraordinary  limitation  which  leads  to 
absurd  results. 

Opposed  to  this  view  of  the  absoluteness  of  the  right 
to  a  free  labor  market  is  the  opinion  expressed  by  the 
judges  in  the  Willcutt  Case.  Judge  Hammond  insists  that 

In  the  jurisprudence  of  any  civilized  country  there  are 
but  few,  if  any,  absolute  rights — rights  which  bend  to  nothing 
and  to  which  everything  else  must  bend.  The  right  to  one’s 
life  would  seem  to  be  quite  absolute,  but  it  must  yield  to  the 
private  right  of  self-defense  and  to  the  public  right  to  punish 
for  crime.  And  so  in  the  case  before  us,  neither  the  right 
of  the  plaintiff  to  a  free  labor  market  nor  the  right  of  the 
union  to  impose  a  fine  upon  its  members  is  absolute. 

The  right  of  an  employer  to  free  labor  is  subject  to  the 
right  of  the  laborer  to  hamper  him  by  many  expedients  short 
of  fraud  or  intimidation  amounting  to  injury  to  the  person 
or  property  of  those  who  desire  to  enter  his  employ,  or  threats 
of  such  injury. 

Judges  Sheldon  and  Loring,  writing  opinions  in  the 
same  case  go  further  and  quite  distinctly  state  that  the  right 
to  the  free  market  is  secondary  to  other  rights.  Judge 
Loring  says  that  the  right  to  organize  to  improve  condi¬ 
tions  and  to  strike  in  furtherance  of  this  object  and  to  do 
all  acts  (not  unlawful)  to  make  the  strike  successful — 
“  these  rights  of  the  employees  are  superior  to  the  right  of 
the  employer  to  have  a  free  flow  of  labor  in  his  business.” 


2l8 


AMERICAN  COURTS  IN  LABOR  CASES 


Judge  Sheldon  adds,  going  into  the  discussion  more  at 
length : 

The  general  right  of  an  employer  to  go  into  the  market 
to  hire  laborers  does  not  deprive  a  union,  in  carrying  on  a 
lawful  strike,  of  the  right  to  use  upon  its  individual  members, 
for  the  purpose  of  keeping  them  up  to  the  performance  of 
their  duty  as  such  members,  all  the  influences  that  any  other 
organization  properly  could  use,  including  the  imposition  of 
fines.  The  right  to  use  such  influences  is  an  independent  and 
paramount  right.  The  interests  of  the  employer  are  subor¬ 
dinate  to  this  right,  and  must  yield  to  it.  .  .  .  The  right  of 
an  employer  to  conduct  his  business  without  interference  in 
the  labor  market  is  subordinate  to  the  right  of  his  employees 
to  strike  and  to  maintain  the  strike  in  a  lawful  manner. 

The  plaintiff  in  the  case  before  us  has  indeed,  like  every 
other  employer  of  labor,  a  right  to  enjoy  a  free  labor  market, 
to  have  a  free  flow  of  labor  come  to  him ;  that  is,  he  has  a 
right  to  employ  such  men  as  are  willing  to  work  for  him  upon 
such  terms  as  may  be  mutually  agreed  upon  between  him  and 
them.  The  strongest  statements  of  this  right  may  perhaps  be 
found  in  some  of  the  cases  cited  in  the  majority  opinion. 
(Cases  cited.)  But  even  these  decisions  follow  the  now  uni¬ 
versal  current  of  authority  in  recognizing  the  right  of  the 
defendants  to  curtail  and  restrict  this  right  of  the  plaintiff, 
by  combining  in  labor  unions  to  engage  in  a  lawful  strike  for 
the  improvement  of  their  own  conditions,  and  in  endeavoring 
to  render  their  strike  successful  by  using  all  rightful  means 
both  to  secure  unanimity  of  action  among  their  own  members 
and  to  dissuade  other  laborers  from  entering  the  employ 
of  the  plaintiff.  That  is,  the  relative  right  of  the  plaintiff  to 
enjoy  a  free  labor  market  is  modified  and  limited  by  the  right 
of  its  employees  to  enter  into  an  agreement  or  combination 
to  secure  higher  wages  or  to  improve  otherwise  the  condition 
of  their  employment,  and  for  this  purpose  to  engage  in  a 
strike  and  to  use  all  rightful  means  to  insure  the  success  of 
their  strike  by  checking,  and  if  they  can  do  so  without  resort- 


SPECIAL  TOPICS 


219 


ing  to  wrongful  means,  by  wholly  stopping,  the  free  flow  of 
labor  to  the  plaintiff.  But  if  this  be  so,  manifestly  the  plain¬ 
tiff’s  right  to  a  free  labor  market  is  not  only  not  a  paramount 
right,  but  it  is  and  must  be  subject  to  the  higher  right  of  the 
defendants  to  combine  and  to  carry  on  a  strike  by  the  use  of 
whatever  lawful  means  may  be  in  their  power;  and  we  cannot 
see  how  this  right  can  be  further  limited  than  by  restricting 
it  to  acts  which  are  not  forbidden  by  law,  either  as  being 
unlawful  in  themselves  or  at  variance  with  a  sound  public 
policy. 

In  the  Tenement  House  Case  Judge  Earl’s  view  was  ap¬ 
parently  influenced  by  Blackstone’s  classification  of  funda¬ 
mental  rights.  He  quotes  Blackstone  on  this  point  in  his 
opinion.  “  The  third  absolute  right  inherent  in  every 
Englishman  is  that  of  property  which  consists  in  the  free 
use,  enjoyment  and  disposal  of  all  his  acquisitions  without 
any  control  or  diminution,  save  only  by  the  law  of  the  land.” 

One  right  frequently  asserted  and  insisted  upon  with 
much  positiveness  is  the  right  of  the  employer  to  carry  on 
his  business  without  the  dictation  of  employees  as  to  who 
shall  be  or  who  shall  not  be  employed.  Judge  Parker,  how¬ 
ever,  finds  a  reason  for  denying  that  even  this  right  is  un¬ 
restricted.  In  his  opinion  in  the  Cumming  Case  he  says : 

I  know  it  is  said  in  another  opinion  in  this  case  that  “  work¬ 
men  cannot  dictate  to  employers  how  they  shall  carry  on  their 
business,  nor  whom  they  shall  or  shall  not  employ but  I 
dissent  absolutely  from  that  proposition,  and  assert  that,  so 
long  as  workmen  must  assume  all  the  risk  of  injury  that 
may  come  to  them  through  the  carelessness  of  co-employees, 
they  have  the  moral  and  legal  right  to  say  that  they  will 
not  work  with  certain  men,  and  the  employer  must  accept 
their  dictation  or  go  without  their  services. 

Judge  Sanborn,  in  the  Allis  Chalmers  Case,  makes  an 


220 


AMERICAN  COURTS  IN  LABOR  CASES 


effort  to  adjust  the  conflict  without  deciding  the  relativity 
of  the  rights  involved. 

Here  is  the  point  where  two  equally  clear  and  valuable 
constitutional  rights  come  into  opposition — the  right  of  the 
workmen  to  get  as  much  as  possible  for  himself  on  the  best 
terms,  and  the  right  of  the  employer  to  use  his  capital  and 
ability  as  he  pleases  to  secure  whatever  profit  his  investment 
and  skill  may  bring.  The  legal  right  involved  is  single,  but 
asserted  by  two  independent  and  conflicting  interests,  and  the 
question  is,  which  one  must  yield  his  right  to  that  of  the 
other,  so  far  as  they  conflict. 

Such  statements  as  these  are  evidence  of  very  important 
and  farreaching  differences  of  opinion  as  to  which  of  cer¬ 
tain  “  rights  ”  shall  take  precedence  over  others  when  they 
come  into  conflict.  The  problem  is  not  one  of  academic 
interest  alone.  When  each  of  two  contending  parties  claims 
to  be  within  his  “  rights  ”  and  the  two  cannot  reach  an 
agreement  out  of  court,  the  question  of  relative  and  abso¬ 
lute  “  rights  ”  obviously  becomes  a  very  practical  one.  Cer¬ 
tain  it  is  that  standards  heretofore  satisfactory  because  de¬ 
veloped  from  long  experience  and  well  adapted  to  prevail¬ 
ing  conditions  have  been  sufficient  in  the  past.  It  is  just 
as  certain  that  as  conditions  have  changed  they  must  change 
accordingly.  This  brings  into  strong  light  the  necessity 
of  a  standard  that  will  always  be  related  to  prevailing  con¬ 
ditions.  Further  it  may  be  added  that  with  no  generally 
recognized  code  much  will  depend  upon  the  individual 
judge.  At  this  point  it  will  not  be  so  much  the  judge’s 
knowledge  of  the  law  that  will  be  of  prime  importance  as  it 
will  be  his  standard  of  ethics.  If  trained  to  individualism, 
his  conclusions  will  flow  from  that  philosophy.  If  trained 
to  adopt  the  social  point  of  view,  his  conclusions  must  neces¬ 
sarily  be  somewhat  different. 


SPECIAL  TOPICS 


221 


III 

MOTIVE  AND  COMBINATION 

The  extent  to  which  questions  of  motive  and  combination 
have  entered  into  the  discussions  of  cases  justifies  a  brief 
consideration  of  these  topics.  The  courts  generally  take  up 
these  questions  only  incidentally.  Yet  in  many  instances 
one  feels  that  the  view  held  by  the  judge  enters  largely  as 
a  factor  in  determining  the  decision. 

As  to  motive,  the  general  view  may  be  shown  in  a  few 
brief  extracts. 

The  rule  of  law,  therefore,  as  firmly  established  in  England, 
in  this  state,  and  in  most  of  the  United  States,  supports  the 
conclusion  [reached  in  the  Cumming  Case]  so  far  as  it  rests 
upon  the  doctrine  “  that  an  act  lawful  in  itself  is  not  con¬ 
verted  by  a  malicious  or  bad  motive  into  an  unlawful  act  so 
as  to  make  the  doer  of  the  act  liable  to  a  civil  action.”  (Par¬ 
kinson  v.  Council.) 

If  an  act  be  lawful — one  that  the  party  has  a  legal  right 
to  do — the  fact  that  he  may  be  actuated  by  an  improper  motive 
does  not  render  it  unlawful.  (Bohn  Mfg.  Co.  v.  Hollis.) 

It  is  a  part  of  every  man’s  civil  rights  that  he  be  left  at 
liberty  to  refuse  business  relations  with  any  person  whomso¬ 
ever,  whether  the  refusal  rests  upon  reason,  or  is  the  result  of 
whim,  caprice,  prejudice  or  malice.  With  his  reasons  neither 
the  public  nor  third  persons  have  any  legal  concern.  (Cooley 
quoted  in  Adair  v.  U.  S.) 

The  motive,  then,  is  not  usually  material.  In  some  de¬ 
cisions  it  is  made  so,  but  the  expressions  in  more  general 
form  indicate  the  direction  in  which  opinion  is  moving. 
Doubtless  motive  will  have  less  rather  than  more  influence. 
Naturally  it  will  be  so,  since  not  only  is  it  almost  impossible 
to  determine  what  the  motives  really  are  but  also  because  the 
motives  are  usually  mixed  and  it  is  difficult  to  pick  the 
determining  one.  Motives  of  individuals,  complex  as  they 


222 


AMERICAN  COURTS  IN  LABOR  CASES 


are,  become  even  less  determinable  when  groups  of  in¬ 
dividuals  act  in  concert. 

Says  Judge  Parker  in  the  Cumming  Case, 

It  seems  to  me  illogical,  and  little  short  of  absurd  to  say 
that  the  everyday  acts  of  the  business  world,  apparently  with¬ 
in  the  domain  of  competition,  may  be  either  lawful  or  unlaw¬ 
ful  according  to  the  motive  of  the  actor.  If  the  motive  be 
good,  the  act  is  lawful.  If  it  be  bad,  the  act  is  unlawful.  I 
do  not  assent  to  this  proposition,  although  there  is  authority 
for  it. 

The  question  of  the  effect  of  combination  on  the  legality 
of  strikes  and  other  organized  labor  activities  is  not  quite 
so  one-sided.  The  superior  influence  that  a  combination 
may  exercise  above  that  exerted  by  a  single  individual  has 
been  a  determining  factor  in  the  minds  of  some  judges. 

What  is  lawful  for  an  individual,  is  not  the  test  of  what  is 
lawful  for  a  combination  of  individuals;  or  to  state  it  in  an¬ 
other  way,  there  are  things  which  it  is  lawful  for  an  individual 
to  do  which  it  is  not  lawful  for  a  combination  of  individuals 
to  do.  (Pickett  v.  Walsh.) 

If  in  any  case,  it  is  criminal  for  many  to  combine  to  do 
what  any  one  may  lawfully  do  singly,  it  would  seem  that  this 
would  be  such  a  case.  Numbers  can  accomplish  what  one 
man  cannot, — evil  as  well  as  good, — and  that  is  the  reason  of 
the  combination.  (State  v.  Glidden.) 

The  opposite  view  is  expressed  in  the  following  extracts : 

What  one  man  may  lawfully  do  singly,  two  or  more  may 
lawfully  agree  to  do  jointly.  The  number  who  unite  to  do  the 
act  cannot  change  its  character  from  lawful  to  unlawful. 
(Bohn  Mfg.  Co.  v.  Hollis.) 

There  can  be  found  running  through  our  legal  literature 
many  remarkable  statements  that  an  act  perfectly  lawful  when 
done  by  one  person  becomes  by  some  sort  of  legerdemain  crim- 


SPECIAL  TOPICS 


223 


inal  wnen  done  by  two  or  more  persons  acting  in  concert,  and 
this  upon  the  theory  that  the  concerted  action  amounts  to  a 
conspiracy.  But  with  this  doctrine  we  do  not  agree.  If  an  in¬ 
dividual  is  clothed  with  a  right  when  acting  alone,  he  does  not 
lose  such  right  merely  by  acting  with  others,  each  of  whom  is 
clothed  with  the  same  right.  If  the  act  done  is  lawful,  the 
combination  of  several  persons  to  commit  it  does  not  render 
it  unlawful.  In  other  words,  the  mere  combination  of  action 
is  not  an  element  which  gives  character  to  the  act. 

Each  one  could  have  quit  without  incurring  any  civil  liabil¬ 
ity  to  him.  What  each  one  could  rightfully  do,  certainly  all 
could  do  if  they  so  desired,  especially  when  their  concerted 
action  was  taken  peaceably,  without  any  threats,  violence,  or 

attempt  at  intimidation.  (Lindsay  v.  Montana  F.  of  L.) 

* 

Whatever  one  man  may  do  alone,  he  may  do  in  combination 
with  others,  provided  they  have  no  unlawful  object  in  view. 
Mere  numbers  do  not  ordinarily  affect  the  quality  of  the  act. 
(Cumming  Case.) 

A  more  moderate  view  of  the  matter  is  expressed  by 
Judg^e  Holmes. 

There  is  a  notion,  which  latterly  has  been  insisted  on  a  good 
deal,  that  a  combination  of  persons  to  do  what  any  one  of  them 
lawfully  might  do  by  himself  will  make  the  otherwise  lawful 
conduct  unlawful.  It  would  be  rash  to  say  that  some  as  yet 
unformulated  truth  may  not  be  hidden  under  this  proposition. 
But  in  the  general  form  in  which  it  has  been  presented  and  ac¬ 
cepted  by  many  courts,  I  think  it  plainly  untrue,  both  on  au¬ 
thority  and  principle.  (Vegelahn  v.  Guntner.) 

IV 

LIFE,  LIBERTY  AND  PROPERTY 

As  one  would  naturally  expect,  the  terms  life,  liberty  and 
property  are  frequently  used  in  the  opinions.  The  com¬ 
prehensiveness  of  the  terms  is  emphasized  by  Judge  Sher¬ 
wood  of  Missouri. 


224 


AMERICAN  COURTS  IN  LABOR  CASES 


It  will  be  noted  that  the  rights  of  life,  liberty,  and  property 
are  grouped  together  in  the  same  sentence ;  they  constitute  a 
trinity  of  rights,  and  each,  as  opposed  to  unlawful  depriva¬ 
tion  thereof,  is  of  equal  constitutional  importance.  With  each 
of  those  rights,  under  the  operation  of  a  familiar  principle, 
every  auxiliary  right,  every  attribute  necessary  to  make  the 
principal  right  effectual  and  valuable  in  its  most  extensive 
sense,  pass  as  incidents  of  the  original  grant.  “  The  rights 
thus  guaranteed  are  something  more  than  the  mere  privileges 
of  locomotion ;  the  guaranty  is  the  negation  of  arbitrary  power 
in  every  form  which  results  in  the  deprivation  of  a  right.” 

These  terms,  “  life,”  “  liberty  ”  and  “  property,”  are  rep¬ 
resentative  terms,  and  cover  every  right  to  which  a  member 
of  the  body  politic  is  entitled  under  the  law.  Within  their 
comprehensive  scope  are  embraced  the  right  of  self-defense, 
freedom  of  speech,  religious  and  political  freedom,  exemption 
from  arbitrary  arrests,  the  right  to  buy  and  sell  as  others  may, 
— all  our  liberties,  personal,  civil,  and  political, — in  short,  all 
that  makes  life  worth  living;  and  of  none  of  these  liberties 
can  any  one  be  deprived  except  by  due  process  of  law.  Now, 
as  before  stated,  each  of  the  rights  heretofore  mentioned 
carries  with  it,  as  its  natural  and  necessary  coincident,  all 
that  effectuates  and  renders  complete  the  full,  unrestrained 
enjoyment  of  that  right.  (State  v.  Julow.) 

Again  Judge  Goode  of  the  same  state  declares : 

A  man’s  trade  and  the  contracts  by  which  he  is  employed  to 
exercise  it  are  in  the  nature  of  property.  He  has  the  right  to 
use  the  former  and  get  the  benefit  of  the  latter  without  tor¬ 
tious  interference.  We  see  no  reason  why  the  rules  applicable 
in  actions  for  injuries  to  tangible  property  should  not  be  ap¬ 
plied  in  the  case  of  an  active  and  relentless  conspiracy  to  pre¬ 
vent  a  mechanic  from  earning  a  living.  (Carter  v.  Oster.) 

Judge  Scholfield  of  Illinois  applies  the  terms  as  follows: 

The  privilege  of  contracting  is  both  a  liberty  and  a  property 


SPECIAL  TOPICS 


225 


right,  and  if  A.  is  denied  the  right  to  contract  and  acquire 
property  in  a  manner  which  he  has  hitherto  enjoyed  under  the 
law,  and  which  B.,  C.,  and  D.  are  still  allowed  by  the  law  to 
enjoy,  it  is  clear  that  he  is  deprived  of  both  liberty  and  prop¬ 
erty  to  the  extent  that  he  is  thus  denied  the  right  to  contract. 
Our  constitution  guarantees  that  no  person  shall  be  deprived 
of  life,  liberty,  or  property  without  due  process  of  law.  (Frorer 
v.  People.) 

Dealing  with  the  imputation  that  courts  are  inclined  to 
distinguish  between  the  liberty  of  individuals  and  the  prop¬ 
erty  rights  of  individuals,  Chief  Justice  Campbell  of 
Colorado  declares: 

The  right  to  acquire  and  possess  property  includes  the  right 
to  contract  for  one’s  labor.  The  latter  is  essentially  a  property 
right.  The  arbitrary  classification  of  rights  into  rights  of 
persons  and  rights  of  things,  made  by  Blackstone  and  other 
jurists  for  purposes  of  convenience  in  treatment,  has  been  the 
occasion  for  hostile  criticism  by  those  favoring  socialistic  or 
paternal  legislation.  Employing  the  argumentum  ad  hominem, 
they  say  that  those  decisions  in  which  courts  have  carefully 
guarded  rights  of  property  put  property  above  the  man.  A 
moment's  calm  reflection  will  show  the  falsity  of  this  charge. 
Property,  as  such,  has  no  claim  upon  the  protection  of  the  law. 
When  a  property  right  is  spoken  of,  the  right  of  some  person 
over  or  concerning  the  property  is  meant.  All  rights  recog¬ 
nized  by  the  law  pertain  to  persons,  natural  or  artificial.  The 
absolute  rights  are  commonly  designated  as  personal  rights. 
They  are  such  as  are  annexed  to  the  person,  like  life  and 
reputation,  while  property  rights  are  those  unconnected  with 
the  person,  but  which  none  the  less  belong  to  some  person. 
All  rights,  both  those  spoken  of  as  personal  and  those  denomin¬ 
ated  as  property  rights,  belong  to  the  individual  citizen ;  and, 
when  it  is  said  that  property  rights  must  not  be  infringed, 
what  is  meant  is  merely  that  the  right  of  some  person  to  or 
concerning  property  must  not  be  interfered  with.  (Re  Mor- 
gan.) 


226 


AMERICAN  COURTS  IN  LABOR  CASES 


Somewhat  opposed  to  these  views,  which  are  generally 
accepted  by  the  courts,  may  be  cited  the  following  extracts. 
Dissenting  from  the  prevailing  opinion  of  the  United  States 
supreme  court  in  Adair  v.  United  States,  Justice  Holmes 
writes : 

I  confess  that  I  think  that  the  right  to  make  contracts  at 
will  that  has  been  derived  from  the  word  “  liberty  ”  in  the 
Amendments  has  been  stretched  to  its  extreme  by  the  de¬ 
cisions  ;  but  they  agree  that  sometimes  the  right  may  be  re¬ 
strained.  Where  there  is,  or  generally  is  believed  to  be,  an 
important  ground  of  public  policy  for  restraint,  the  Constitu¬ 
tion  does  not  forbid  it,  whether  this  court  agrees  or  disagrees 
with  the  policy  pursued. 

Again  in  Lochner  v.  People  the  same  justice,  again  dis¬ 
senting,  says, 

I  think  that  the  word  “  liberty,”  in  the  14th  Amendment,  is 
perverted  when  it  is  held  to  prevent  the  natural  outcome  of  a 
dominant  opinion,  unless  it  can  be  said  that  a  rational  and 
fair  man  necessarily  would  admit  that  the  statute  proposed 
would  infringe  fundamental  principles  as  they  have  been  un¬ 
derstood  by  the  traditions  of  our  people  and  our  law.  . 

V 

CONCLUSIONS  PUSHED  TO  ABSURDITY 

Some  opinions  show  a  tendency  to  denounce  certain 
legislation  not  so  much  because  of  its  own  inherent  evil  as 
because  of  what  it  may  lead  to  as  a  precedent.  Instances 
of  this  are  found  in  the  following  cases. 

Chief  Justice  Campbell  of  Colorado,  arguing  against  the 
eight-hour  law  for  mines  and  smelters,  incorporates  the 
following  argument  in  the  opinion : 

If  the  principle  of  the  decision  by  which  the  present  [law] 
is  saved,  in  its  logical  extension,  will  protect  others  that  every 


SPECIAL  TOPICS 


22/ 


rational  mind  will  declare  void,  it  is  well  to  stop  for  reflection ; 
for  it  is  a  question  of  power  and  not  discretion,  we  are  now 
considering. 

Then  follows  the  application.  If  this  legislation  may  he 
passed  to  protect  the  health  of  workmen  and  the  day  limited 
to  eight  hours,  continues  the  argument,  the  legislature 

may  hereafter,  upon  the  ground  that  idleness,  resulting  from 
short  hours  of  labor,  leads  to  drunkenness  and  gambling,  and 
industry,  promoted  by  longer  hours,  to  happiness  and  health, 
enact  that  workmen  must  labor  at  these  occupations  fourteen 
or  sixteen  hours  per  day. 

By  extending  the  same  principle  to  other  occupations,  the 
legislature  may  say 

that  a  man  weighing  one  hundred  and  twenty  pounds  or  less 
shall  not  work  in  a  stone  quarry,  because  only  large  and 
powerful  men  can  safely  work  therein ;  that  only  men  free 
from  a  tendency  to  tuberculosis  shall  work  at  indoor  occupa¬ 
tions,  because  those  so  afflicted  need  more  pure  air  and  sun¬ 
shine  than  they  can  get  if  excluded  from  the  open  air;  that 
only  persons  not  needing  the  aid  of  eye-glasses  shall  become 
makers  or  repairers  of  watches,  because  labor,  with  such 
mechanical  aids,  upon  delicate  mechanisms,  tends  to  destroy 
vision ;  or  that  those  suffering  from  sluggish  livers  shall  not 
engage  in  sedentary  occupations,  because  their  health  demands 
active,  muscular  effort.  Then  it  is  only  one  step  further  to 
provide  by  law  the  style  and  quality  of  garments  the  citizen 
may  wear,  the  quantity  and  quality  of  food  he  may  eat,  and 
the  beverage  he  may  drink.  And,  because  one  cannot  support 
and  properly  educate  his  family  for  less  than  a  certain  amount 
of  money,  the  legislature  may  declare  that,  to  promote  the  gen¬ 
eral  welfare,  no  employer  shall  contract  to  pay,  or  pay,  an  em¬ 
ployee  less  than  an  arbitrary  wage,  so  fixed  as  to  produce  the 
required  sum.  Such  and  other  illustrations  that  readily  sug¬ 
gest  themselves  are  germane,  and  each  and  every  supposed 


228 


AMERICAN  COURTS  IN  LABOR  CASES 


act  could  be  sustained  upon  the  same  principle  that  would 
make  the  act  before  us  valid. 

In  the  dissenting  opinion  in  Peel  Splint  Coal  Co.  v.  State 
Justice  English  finds  an  objection  to  the  law  in  that  it 
applies  to  mines  that  employ  ten  or  more  workmen.  This 
objection  he  states  as  follows.  The  law  excludes  from  its 
operation  any  person  operating  a  coal  mine 

in  which  less  than  ten  miners  are  employed,  which  results  in 
this ;  that  an  operator  only  employing  nine  need  not  weigh 
the  coal  before  it  is  screened,  but  one  employing  twelve  must. 
Can  any  one  say  why  the  operator  should  be  allowed  to  weigh 
the  coal  after  it  is  screened  for  the  nine,  and  that  he  must 
weigh  it  previously  for  the  twelve?  Is  not  the  danger  of 
fraud  as  great  to  the  individual  miner  in  the  one  instance  as 
the  other  ?  and  is  not  one  miner  as  much  entitled  to  the  benefit 
of  the  law  (if  it  be  beneficial)  as  another?  And  again,  is 
there  any  good  reason  why  the  small  operator  should  be  al¬ 
lowed  to  obtain  from  his  mine  merchantable  coal  by  using  the 
screen  before  it  is  weighed,  and  the  large  operator  be  denied 
the  privilege  of  thus  testing  the  services  of  his  employees,  and 
obtaining  merchantable  coal  for  the  wages  he  pays  them? 
and  why  is  it  that  the  police  power  of  the  state  should  be 
invoked  for  the  protection  of  the  twelve,  while  the  nine  are 
left  to  work  their  way  with  fear  and  trembling,  and  protect 
themselves  from  the  alleged  iniquities  of  the  screen? 

Justice  Peckham,  speaking  for  the  United  States  supreme 
court  in  the  Bakers’  Case,  argued  that  if  the  principle  on 
which  that  law  was  made  to  rest  were  admitted  as  valid  it 
would  lead  to  conclusions  that  would  be  regarded  as  ab¬ 
surd. 

It  is  unfortunately  true,  that  labor,  even  in  any  department, 
may  possibly  carry  with  it  the  seeds  of  unhealthiness.  But  are 
we  all,  on  that  account,  at  the  mercy  of  legislative  majorities? 
A  printer,  a  tinsmith,  a  locksmith,  a  carpenter,  a  cabinetmaker. 


SPECIAL  TOPICS 


229 


a  dry  goods  clerk,  a  bank’s,  a  lawyer’s,  or  a  physician’s  clerk, 
or  a  clerk  in  almost  any  kind  of  business,  would  all  come 
under  the  power  of  the  legislature,  on  this  assumption.  .  .  In 
our  large  cities  there  are  many  buildings  into  which  the  sun 
penetrates  for  but  a  short  time  in  each  day,  and  these  build¬ 
ings  are  occupied  by  people  carrying  on  the  business  of  bank¬ 
ers,  brokers,  lawyers,  real  estate,  and  many  other  kinds  of 
business,  aided  by  many  clerks,  messengers,  and  other  em¬ 
ployees.  Upon  the  assumption  of  the  validity  of  this  act  under 
review,  it  is  not  possible  to  say  that  an  act,  prohibiting  lawyers' 
or  bank  clerks,  or  others,  from  contracting  to  labor  for  their 
employers  more  than  eight  hours  a  day  would  be  invalid. 
It  might  be  said  that  it  is  unhealthy  to  work  more  than  that 
number  of  hours  in  an  apartment  lighted  by  artificial  light 
during  the  working  hours  of  the  day;  that  the  occupation  of 
the  bank  clerk,  the  lawyer’s  clerk,  the  real  estate  clerk,  or  the 
broker’s  clerk,  in  such  offices  is  therefore  unhealthy,  and  the 
legislature,  in  its  paternal  wisdom,  must,  therefore,  have  the 
right  to  legislate  on  the  subject  of,  and  to  limit,  the  hours  for 
such  labor;  and,  if  it  exercises  that  power,  and  its  validity  be 
questioned,  it  is  sufficient  to  say,  it  has  reference  to  the  public 
health ;  it  has  reference  to  the  health  of  the  employees  con¬ 
demned  to  labor  day  after  day  in  buildings  where  the  sun 
never  shines ;  it  is  a  health  law,  and  therefore  it  is  valid, 
and  cannot  be  questioned  by  the  courts.  .  . 

[It  is  not  possible  to  establish  a  definite  connection  between 
the]  number  of  hours  a  baker  may  work  in  the  bakery  and 
the  healthful  quality  of  the  bread  made  by  the  workmen.  .  .  . 
If  the  man  works  ten  hours  a  day  it  is  all  right,  but  if  ten  and 
a  half  or  eleven  his  health  is  in  danger  and  his  bread  may  be 
unhealthy,  and,  therefore,  he  shall  not  be  permitted  to  do  it. 
This,  we  think,  is  unreasonable  and  entirely  arbitrary. 

Judge  Carpenter,  in  State  v.  Glidden,  saw  in  a  boycott  a 
purpose  to  deprive  the  defendant  “  of  its  liberty  to  carry 
on  its  business  in  its  own  way.”  It  is  then  found  necessary 
“  to  announce  from  the  bench  ”  “  that  every  man  may  carry 


230 


AMERICAN  COURTS  IN  LABOR  CASES 


on  his  business  as  he  pleases,  may  do  what  he  will  with  his 
own  so  long  as  he  does  nothing  unlawful,  and  acts  with  due 
regard  to  the  rights  of  others.”  It  is  noted  with  some 
wonder  by  the  Judge  that  the  occasion  for  such  an  an¬ 
nouncement  should  be  “  not  an  attempt  by  government  to 
interfere  with  the  rights  of  the  citizen,  nor  by  the  rich 
and  powerful  to  oppress  the  poor,”  but  “  an  attempt  by  a 
large  body  of  working-men  to  control,  by  means  little  if 
any  better  than  force,  the  action  of  employers.”  If  em¬ 
ployees  have  this  right 

then  all  business  enterprises  are  alike  subject  to  their  dictation. 
No  one  is  safe  in  engaging  in  business.  .  .  .It  must  be  remem¬ 
bered  that  the  exercise  of  the  power,  if  conceded,  will  by  no 
means  be  confined  to  the  matter  of  employing  help.  Upon 
the  same  principle,  and  for  the  same  reasons,  the  right  to  de¬ 
termine  what  business  others  shall  engage  in,  when  and  where 
it  shall  be  carried  on,  etc.,  will  be  demanded,  and  must  be  con¬ 
ceded.  The  principle,  if  it  once  obtains  a  foothold,  is  ag¬ 
gressive  and  is  not  easily  checked.  It  thrives  on  what  it  feeds, 
and  is  insatiate  in  its  demands.  More  requires  more.  If  a  large 
body  of  irresponsible  men  demand  and  receive  power  outside 
of  law,  over  and  above  law,  it  is  not  to  be  expected  that  they 
will  be  satisfied  with  a  moderate  and  reasonable  use  of  it. 

VI 

LABOR  AS  A  COMMODITY 

The  general  question  of  the  applicability  of  the  Sherman 
Anti-Trust  Law  to  conspiracies  in  restraint  of  trade  formed 
by  labor  organizations  may  be  regarded  as  having  been 
settled  by  the  United  States  supreme  court.  The  Debs  Case 
and  the  Loewe  Case  may  be  cited  in  evidence  of  this  fact. 
Yet  the  question  came  up  before  the  supreme  court  of  Iowa 
in  1908  and  led  to  an  opinion  that  is  of  more  than  ordinary 
interest.  The  law  of  that  state  forbade  all  agreements  “  to 


SPECIAL  TOPICS 


231 


regulate  or  fix  the  price  of  any  article  of  merchandise  or 
commodity,  or  to  fix  or  limit  the  amount  or  quantity  of  any 
article,  commodity,  or  merchandise  to  be  manufactured, 
mined,  produced,  or  sold  in  this  state.”  The  case  that 
came  before  the  court  was  one  in  which  physicians  were  in¬ 
dicted  for  entering  into  an  agreement  to  establish  fees  and 
charges  for  their  personal  services.  The  relation  of  the 
opinion  to  labor  appears  in  the  consideration  given  to  the 
meaning  of  the  two  terms  “  labor  ”  and  “  commodity.” 

The  essential  point  in  the  case,  as  expressed  in  the  opinion, 
is  emphasized  at  the  outset.  After  referring  to  the  pro¬ 
visions  of  the  statute  as  just  quoted  the  question  is  raised: 
“  Do  the  acts  charged  constitute  a  crime  under  this  section 
of  the  code  ?  .  .  .  Are  the  charges  of  a  physician  or  surgeon 
for  his  medical  skill  or  ability  an  article  of  merchandise  or 
commodity  to  be  produced  or  sold  in  this  state?”  It  was 
contended  before  the  court  that  the  word  “  commodity  ”  “is 
broad  enough  to  cover  the  charge  made  for  professional 
services  or  skill.”  To  this  contention  the  opinion  replies 
that  in  attributing  meaning  to  terms  in  criminal  statutes, 
they  are  to  have  a  strict  construction.  Moreover,  in  con¬ 
struing  any  statute,  all  the  language  shall  be  considered,  and 
“  such  interpretation  placed  upon  any  word  appearing 

r 

therein  as  was  within  the  manifest  intent  of  the  body 
which  enacted  the  law.”  After  discussing  the  derivative 
and  the  dictionary  meaning  of  the  term  in  question,  it  is 
concluded  that  a  restricted  meaning  must  be  the  one  adopted. 
The  matter  appears  of  such  general  importance  to  the  court 
that  Judge  Deemer,  writing  the  opinion,  discusses  this  point 
more  at  length. 

Whilst  there  is  a  class  of  political  economists,  who  treat  labor 
as  so  much  merchandise,  the  wage  being  regulated  simply  by 
supply  and  demand,  there  is  another  class,  which,  taking  ac¬ 
count  of  the  personal  equation,  sees  in  it  something  more  than 


232 


AMERICAN  COURTS  IN  LABOR  CASES 


a  commodity,  and  refuses  to  subscribe  to  the  doctrine  that  sup¬ 
ply  and  demand  alone  regulate  the  price.  This  latter  class  of 
economists  refuses  to  accept  the  doctrine  that  a  man  is  rich  be¬ 
cause  he  has  stored  away  within  him  many  days’  work,  and 
are  convinced  that  his  necessities,  quite  as  often  as  the  de¬ 
mand  for  his  labor,  fixes  the  stipend  which  he  is  to  receive.  In 
other  words,  the  laborer,  skilled  or  unskilled,  is  not  regarded 
as  standing  on  an  equality  with  him  who  barters  in  goods  and 
merchandise.  It  is  not,  of  course,  within  the  province  of 
courts  of  justice  to  adopt  or  promulgate  any  particular  system 
of  political  science  ;  but  in  the  interpretation  of  statutes  they 
must  take  notice  of  current  political  theory  and  conviction.  If 
we  were  to  adopt  the  view  so  strongly  presented  by  appellant’s 
counsel,  it  would  be  on  the  assumption  that  the  associated 
words  “  merchandise  ”  and  “  commodity  ”  include  the  wages 
to  be  paid  for  labor,  because  labor  is  a  sort  of  merchandise, 
subject  to  barter  and  sale  as  other  goods.  .  . 

Used  in  connection  with  the  term  “  merchandise,”  and  quali¬ 
fied  as  it  is  in  the  latter  part  of  the  section  by  the  words 
“  manufactured,  mined,  produced,  or  sold,”  it  is  manifest  that 
the  statute  was  not  intended  to,  and  did  not,  include  labor 
either  skilled  or  unskilled.  .  .  .  The  only  ground  upon  which 
appellant  can  stand  with  any  show  of  plausibility  is  that 
labor  is  a  commodity  to  be  bought,  sold,  or  produced,  as 
merchandise.  This  is  a  strained  and  unnatural  construction, 
and  gives  to  the  word  “  commodity  ”  a  meaning  which  is 
perhaps  permissible,  but  is  not  the  commonly  accepted  one. 
Under  our  statutes,  words  and  phrases  are  to  be  construed 
according  to  the  context  and  the  approved  usage  of  the  lan¬ 
guage.  With  this  in  mind  we  are  constrained  to  hold  that  labor 
is  not  a  commodity  within  the  meaning  of  the  act  now  in 
question . 

It  seems  to  be  the  almost  universal  holding  that  it  is  no 
crime  for  any  number  of  persons  without  an  unlawful  object 
in  view  to  associate  themselves  together,  and  agree  that  they 
will  not  work  for  or  deal  with  certain  classes  of  men,  or  work 
under  a  certain  price  or  without  certain  conditions.  .  .  . 


SPECIAL  TOPICS 


233 


The  statute  in  question  was  aimed  at  unlawful  conspiracies 
or  combinations  in  restraint  of  trade,  and  was  manifestly  not 
intended  to  cover  labor  unions.  It  is  the  right  of  miners,  arti¬ 
sans,  laborers,  or  professional  men  to  unite  for  their  own 
improvement  or  advancement  or  for  any  other  lawful  purpose, 
and  it  has  never  been  held,  so  far  as  we  are  able  to  discover, 
that  a  union  for  the  purpose  of  advancing  wages  is  unlawful 
under  any  statutes  which  have  been  called  to  our  attention. 
As  said  by  Judge  Taft  in  Phelan  case,  “  Such  unions,  when 
rightly  conducted,  are  beneficial  in  character.”  And  it  would 
be  a  strained  and  unnatural  conclusion  to  hold  that  a  statute 
aimed  at  pools  and  trusts  should  be  held  to  include  agreements 
as  to  prices  for  labor  because  the  word  “  commodity  ”  is  used 
therein.  As  the  right  to  combine  for  the  purpose  of  securing 
higher  wages  is  recognized  as  lawful  at  common  law,  a  statute 
enacted  to  prohibit  pools  and  trusts  should  not  be  held  to  ap¬ 
ply  to  combinations  to  fix  the  wages  for  labor,  unless  it  clearly 
appears  that  such  was  the  legislative  intent.  Whatever  of 
doubt  there  may  be  regarding  the  power  of  the  legislature  to 
do  so,  we  do  not  think  that  the  act  in  question  covers  combina¬ 
tions  to  fix  the  labor  price  whether  that  labor  be  skilled  or 
unskilled. 

Finally,  referring  to  the  cases  cited  by  the  appellant,  the 
Debs  and  the  Loewe  cases,  the  opinion  declares  that  these 
cases  are  not  in  point. 

The  statute  before  us  has  nothing  to  do  with  commerce ; 
nor  does  it  have  to  do  with  restraint  of  trade  or  commerce  as 
does  the  Sherman  Act.  It  has  to  do  with  pools  and  trusts 
organized  in  this  state  to  fix  or  regulate  the  price  of  any 
article  or  commodity,  or  to  fix  or  limit  the  amount  or  quality 
of  any  article,  commodity  or  merchandise  to  be  produced  or 
sold  in  the  state.  Surely  it  has  no  reference  to  the  amount 
or  quality  of  labor  to  be  produced  or  sold.  Such  a  construc¬ 
tion  would  be  ridiculous.  And,  if  it  will  not  bear  that  inter¬ 
pretation,  it  follows  that  the  word  “  commodity,”  when  used 
with  reference  to  prices,  should  not  be  held  to  include  labor. 


CHAPTER  XIII 


Conclusions 

The  field  covered  by  the  preceding  chapters  suggests 
some  considerations  of  deep  importance.  The  number  of 
cases  to  which  reference  has  been  made  and  from  which  ex¬ 
tracts  have  been  quoted  is  not  large.  They  are  neverthe¬ 
less  typical  of  the  far  greater  number  that  courts  have 
heard  and  in  which  they  have  written  opinions.  In  all  of 
these  there  is  great  variety  of  circumstances,  and  the  con¬ 
ditions  of  each  particular  case  have  had  an  important  in¬ 
fluence  in  shaping  the  decision.  The  present  study  is  not 
directly  concerned  either  with  the  particulars  of  the  cases  or 
with  the  effects  of  such  on  the  decisions  reached.  In  all 
the  elaboration  of  opinions  set  forth  in  justification  of  the 
decisions  there  appear  certain  points  of  view,  attitudes  of 
mind  and  statements  of  general  principles  that  are  of  absorb¬ 
ing  interest  as  well  as  of  great  importance.  In  the  preceding 
chapters  the  purpose  has  been  to  state  these  in  such  variety 
and  with  such  fullness  as  to  enable  the  reader  to  judge  for 
himself  how  extended  and  varied  these  expressions  are. 
Such  a  reading  leads  to  certain  conclusions  that  should  be 
pointed  out  in  this  chapter. 

Where  the  case  presents  any  unusual  difficulty  the 
mind  of  the  judge  naturally  turns  to  first  principles  in 
search  of  a  solution.  This  method  certainly  should 
lead  to  a  satisfactory  result.  As  a  matter  of  fact,  it 
does  no  such  thing.  Instead  of  eliminating  the  perplexity 
it  increases  it  and  renders  a  solution  more  difficult.  An 


234 


CONCLUSIONS 


235 


employer  appears  with  the  charge  that  his  business  is  being 
unlawfully  interfered  with  and  asks  the  court  to  protect  him. 
Possibly  there  comes  immediately  to  the  mind  of  the  judges 
such  well  known  and  generally  accepted  propositions  as 
these :  every  man  may  do  what  he  will  with  his  own  so  long 
as  he  acts  with  due  regard  to  the  rights  of  others;  every 
man  may  carry  on  his  business  as  he  pleases.  Such  ex¬ 
pressions  are  time-honored  and  have  become  almost  a  part 
of  our  political  consciousness.  The  decision  seems  easy  and 
possibly  the  prayer  of  the  employer  is  granted.  But  pos¬ 
sibly  in  reply  to  these  general  propositions  the  employee 
who  is  charged  with  the  interference  suggests  a  different 
group  of  propositions  equally  well  known  and  generally 
accepted:  a  man  may  work  or  not  as  he  pleases;  a  man 
may  dispose  of  his  labor  on  such  terms  and  under  such 
conditions  as  are  acceptable  to  him,  so  long  as  he  acts  with 
due  regard  to  the  rights  of  others.  Obviously  this  is  dis¬ 
turbing.  The  case  would  be  an  easy  one  to  decide  on  the 
basis  of  either  set  of  propositions  were  it  not  for  the  other. 
Yet  a  decision  must  be  made  and  once  made  an  opinion  must 
be  written  in  support  of  it. 

Possibly  one  set  of  propositions  will  be  taken  as  a  state¬ 
ment  of  the  legal  principle  involved,  and  from  them  a  logical 
argument  built  up  sustaining  the  conclusion ;  a  conclusion, 
it  may  be,  that  the  legal  right  is  with  the  employer,  or  pos¬ 
sibly  that  it  is  with  the  employee.  But,  which  set  of  general 
propositions  will  be  chosen?  It  is  at  this  point  that  the 
judges’  attitude  of  mind  and  habit  of  thought,  a  result  of 
legal  training  and  legal  practice,  become  of  prime  import¬ 
ance.  Doubtless  this  is  the  cause  which  has  led  in  so  many 
cases  to  the  choice  of  the  first  of  these  two  sets  of  proposi¬ 
tions  and  to  the  decision  in  favor  of  the  employer,  although 
that  decision  is  supported  by  an  opinion  expressed  in  terms 
of  general  truths  that  in  themselves  are  beyond  question. 


AMERICAN  COURTS  IN  LABOR  CASES 


236 

With  the  increasing  complexity  of  such  cases  the  insuffi¬ 
ciency  of  the  reasoning  has  become  more  and  more  obvious. 
The  number  of  supposedly  self-evident  legal  propositions  has 
increased  and  with  the  increase  their  irreconcilability  has  be¬ 
come  more  apparent. 

In  the  numerous  efforts  to  reconcile  these  various  sets  of 
propositions,  a  variety  of  conclusions  have  been  reached 
and  different  lines  of  argument  adopted  in  establishing  them. 
The  citations  chosen  furnish  abundant  evidence  of  this. 

The  solution  adopted  by  some  courts  seemed  at  first  a 
promising  one.  It  was  the  assumption  of  an  attitude  of 
aloofness;  a  position  in  which  the  general  legal  principles 
were  laid  down  as  applicable  to  both  parties  with  the  in¬ 
junction  that  the  contending  parties  must  settle  their  dif¬ 
ferences  as  best  they  might,  both  parties  keeping  within 
the  legal  limits  established.  This  method  of  meeting  the 
difficulty  seemed  wholly  reasonable  and  fair,  and  clearly 
within  the  province  of  the  court.  The  rights  were  equal 
but  conflicting.  There  were  clearly  two  sides  to  every 
question  of  this  sort.  The  reasonableness  of  the  demands 
made  on  each  side  the  court  had  no  means  of  determining. 
The  difficulties  that  are  raised  through  this  conflict  of  equal 
rights  must  be  settled  by  mutual  agreement  between  the  con¬ 
tending  parties,  they  must  be  adjusted  through  freedom  of 
private  contract  between  employer  and  employee.  But  such 
an  attempt  to  solve  the  difficulty  can  not  be  of  any  per¬ 
manent  value  either  socially  or  legally.  Each  party  in¬ 
sists  that  the  right  in  its  case  is  superior  to  that  of  the  other. 
And  so,  if  the  court  will  have  nothing  to  do  with  such  diffi¬ 
culties  at  this  point,  the  stage  is  soon  reached  where  it  must 
permit  itself  to  be  appealed  to,  this  time  on  the  question  of 
what  the  respective  contending  parties  may  do  in  the  ef¬ 
forts  to  force  their  contention  upon  their  opponents.  This 
brings  the  whole  matter  back  into  court  again.  There 


CONCLUSIONS 


237 


it  will  have  to  remain  until  by  the  slow  process  of  the 
development  of  judicial  opinion  some  general  principles  are 
evolved  that  will  not  be  in  conflict  among  themselves  and 
that  will  be  applicable  to  the  conditions  to  which  they  are 
to  be  applied.  This  process  of  legal  evolution  will  doubtless 
be  slow  and  there  may  be  expected  to  appear  much  im¬ 
patience  both  with  legal  principles  and  with  courts  before  it 
is  completed.  Meantime  the  struggle  must  presumably 
go  on,  and  there  must  be  for  some  time  to  come  continued 
dissatisfaction  with  the  decisions  that  the  courts  make.  As 
with  trusts  so  with  trade  unions  the  fact  of  large  combina¬ 
tion  is  more  evident  than  is  the  means  of  adjusting  their 
activities  to  those  of  individuals.  “  It  is  only  in  recent  years 
that  these  great  and  powerful  combinations  have  made  their 
appearance,  and  the  limits  to  which  they  may  go  in  en¬ 
forcing  their  demands  are  far  from  being  settled.” 

Returning,  as  the  courts  must,  to  a  consideration  of  these 
perplexities,  it  is  found  that  there  are  at  present  certain 
difficulties  the  solution  of  which  has  not  yet  been  discovered. 
These  difficulties  take  the  form  of  general  propositions 
seemingly  sound  in  themselves  but  irreconcilible.  The 
choice  between  them  has  been  accompanied  with  increasing 
embarrassment  as  labor  unions  have  come  into  a  position 
of  recognized  legality.  In  earlier  times  when  so  nearly  all 
phases  of  individual  liberty  as  applied  to  industrial  condi¬ 
tions  were  interpreted  from  the  point  of  view  of  the  em¬ 
ployer  the  difficulties  were  scarcely  realized.  The  work¬ 
men  were  not  in  a  position  to  enforce  acknowledgment  of 
their  point  of  view  and  what  they  contended  to  be  the 
validity  of  their  claims.  As  they  have  gained  steadily  in 
recognition  it  has  become  apparent  that  the  same  generaliza¬ 
tions,  for  so  long  the  bulwark  of  defense  of  the  employers, 
were  capable  of  such  an  interpretation  as  to  become  a  de¬ 
fense  for  themselves  instead  of  an  obstacle. 


AMERICAN  COURTS  IN  LABOR  CASES 


238 

Out  of  this  slow  transition  in  the  practical  relation  of 
the  two  before  courts  of  justice  have  developed  some  as  yet 
irreconcilible  propositions  so  far  as  their  application  is  con¬ 
cerned.  These  center  around  the  leading  question :  What 
are  the  rights  of  organized  labor  in  law?  That  this  ques¬ 
tion  has  not  received  its  final  answer  no  one  who  reads  the 
views  expressed  in  the  various  opinions  can  doubt.  The 
fact  that  laborers  have  a  right  to  organize  seems  to  be 
generally  recognized.  Their  legal  relations  to  others  has 
not  yet  been  established.  This  is  “  a  part  of  the  law  still  in 
the  nebulous  but  clearing  stage.”  Both  the  number  of 
cases  brought  to  the  courts  and  their  variety  are  rapidly  in¬ 
creasing.  They  involve  all  phases  of  the  general  question 
of  transactions  between  employers  and  employees.  The 
views  of  the  courts  “  as  to  the  constitutionality  of  many 
such  laws  are  in  serious  conflict.”  The  situation  is  well 
summed  up  by  Judge  Halloway  when  he  says: 

Whatever  may  have  been  the  attitude  of  the  courts  and  legis¬ 
lative  bodies  in  this  country  towards  labor  organizations  in  the 
past,  it  is  sufficient  for  our  purpose  to  know  that  the  right  of 
workingmen  to  organize  for  the  improvement  of  their  indus¬ 
trial  condition  is  now  generally  admitted.  The  great  diversity 
of  opinions  among  the  courts  has  arisen  over  a  consideration 
of  the  question :  What  means  may  trade  unions  employ  to 
further  the  objects  of  their  organizations? 

The  legal  doubt  of  the  right  to  organize  has  given  place 
to  a  legal  uncertainty  as  to  what  the  organizations  may  do. 

In  this  situation  the  union  men  find  themselves  in  a 
position  of  double  difficulty.  One  phase  arises  from  their 
relations  with  employers;  the  other  from  their  relations  with 
workers  who  do  not  join  the  unions.  Naturally  with  the 
very  positive  views  that  organized  laborers  entertain  con¬ 
cerning  unionism  and  union  policies,  they  deem  it  of  utmost 


CONCLUSIONS 


239 


importance  that  employers  and  non-union  laborers  be  pre¬ 
vented  from  establishing  such  relations  as  to  result  in  the 
defeat  of  their  purposes.  This  makes  the  difficulty  one  of 
great  perplexity,  especially  when  the  propositions  to  be  re¬ 
conciled  are  stated  in  terms  of  individual  rights.  Here  arise 
conflicts  that  have  as  yet  quite  completely  baffled  the 
courts.  Some  of  them  may  be  stated  in  form  as  follows : 
What  effect  upon  the  general  rights  of  individuals  follows 
from  the  fact  that  some  of  those  individuals  are  employers 
of  labor  and  some  moreover  belong  to  associations  of  em¬ 
ployers  where  the  rules  of  the  association  contain  voluntary 
agreements  to  act  in  concert;  that  some  of  the  individuals 
are  workingmen  who  belong  to  associations  of  workmen 
where  the  rules  of  the  association  contain  voluntary  agree¬ 
ments  to  act  in  concert;  and  that  some  of  the  individuals 
are  workingmen  who  refuse  to  enter  into  any  association 
and  insist  upon  being  free  from  any  such  rules?  From 
this  situation  there  emerges  inevitably  a  contention  between 
the  rights  of  the  individual  employer  as  against  those  of 
the  individual  employee,  the  rights  of  the  individual  union 
employee  as  against  those  of  the  individual  non-union 
employee,  the  rights  of  individual  employers  and  individual 
non-union  employees  to  establish  business  relations  as 
against  the  rights  of  individual  union  employees  to  inter¬ 
fere  with  those  relations.  To  increase  the  difficulty  the 
fact  of  organization  and  its  effects  upon  individual  rights 
enter  into  the  situation,  also  the  fact  of  competition  and  its 
effect  upon  the  same  individual  rights.  Further  there  is  the 
difficulty  in  reconciling  the  recognition  of  the  right  to  or¬ 
ganize  with  the  right  of  the  organization  to  act;  the  right 
to  strike  and  the  purposes  for  which  strikes  may  be  entered 
upon,  the  relevancy  or  the  irrelevancy  of  motives  in  con¬ 
nection  either  with  strikes  or  other  union  activities.  These 
conflicting  propositions  are  to  be  found  running  through 


240 


AMERICAN  COURTS  IN  LABOR  CASES 


the  large  variety  of  opinions  written  by  many  different 
judges.  Though  expressed  in  varying  forms  they  are  easily 
recognizable.  It  must  never  be  lost  from  view  that  these 
interpretations  are  often,  perhaps  usually,  determined  by 
the  circumstances  of  the  case  at  bar.  Yet  no  one  can  read 
these  many  opinions  in  full  without  realizing  that  the  legal 
principles  that  are  being  slowly  evolved  are  determined  to 
no  small  degree  by  the  attitude  and  training  of  the  judges. 

From  such  a  situation  certain  conclusions  are  forced  upon 
one  who  studies  the  opinions  with  a  view  to  ascertaining 
something  more  than  the  bare  fact  of  what  the  law  is. 
They  indicate  certain  tendencies  that  are  far  more  important 
than  the  decisions  themselves  can  possibly  be.  The  de¬ 
cisions  determine  the  outcome  of  particular  cases  and  of 
similar  cases  for  the  future.  The  opinions  indicate  the  ef¬ 
fort  to  solve  problems;  to  reconcile  differences;  to  formu¬ 
late  legal  principles  that  shall  determine  the  actions  of 
industrial  parties  before  they  become  parties  at  law;  even 
to  guide  them  so  that  they  may  settle  their  differences 
without  becoming  parties  at  law. 

One  cannot  escape  the  impression  that  general  statements 
of  individual  rights  do  not  go  far  toward  solving  the  diffi¬ 
culty  as  it  may  exist,  for  example,  between  an  employer 
and  an  employee.  In  a  case  which  argued  forcibly  against 
a  law  forbidding  an  employer  from  discharging  an  employee 
because  he  was  a  member  of  a  labor  organization  the  court 
inserted  in  its  opinion  general  statements  of  individual  right. 

A  man’s  right  not  to  work  or  not  to  pursue  a  particular  trade 
or  calling,  or  to  determine  when  or  where  or  with  whom  he 
will  work,  is  in  law  a  right  of  precisely  the  same  nature,  and 
entitled  to  just  the  same  protection,  as  a  man’s  right  to  trade 
or  work.  ...  It  is,  in  my  opinion,  the  absolute  right  of  every 
workman  to  exercise  his  own  option  with  regard  to  the  per¬ 
sons  in  whose  society  he  will  agree  or  continue  to  work.  .  .  . 


CONCLUSIONS 


24  L 


Every  man  has  a  right  under  the  law,  as  between  himself 
and  others  to  full  freedom  in  disposing  of  his  own  labor  or 
capital  according  to  his  own  will.  .  .  It  is  a  part  of  every  man’s 
civil  rights  that  he  be  left  at  liberty  to  refuse  business  relations 
with  any  person  whomsoever,  whether  the  refusal  rests  upon 
reason,  or  is  the  result  of  whim,  caprice,  prejudice  or  malice. 
.  .  .  Every  man  has  a  natural  right  to  hire  his  services  to 
any  one  he  pleases,  or  refrain  from  such  hiring ;  and  so,  like¬ 
wise,  it  is  the  right  of  every  one  to  determine  whose  services 
lie  will  hire. 

Such  statements  as  these  undoubtedly  express  legal  prin¬ 
ciples  of  long  standing  whose  roots  reach  far  into  the  past. 
They  have  commanded  the  respect  of  American  thought  for 
generations  and  were  among  those  cherished  principles  that 
were  finally  embodied  in  our  constitutions.  Yet  what  is 
their  application  to  such  difficulties  as  present  themselves  in 
our -present-day  labor  controversies?  The  case  from  which 
these  statements  have  been  quoted  decided  that  an  employer 
could  not  be  deprived  of  his  constitutional  right  to  discharge 
an  employee  whenever  it  was  his  pleasure  to  do  so.  Cite 
these  same  principles  in  a  case  where  men  are  striking 
against  an  employer  and  they  have  been  given  quite  a  dif¬ 
ferent  interpretation  by  some  courts.  Cite  them  again 
where  union  men  are  refusing  to  work  with  non-union  men 
and  it  is  very  material  whether  they  be  stated  for  the  non¬ 
union  men  or  for  their  union  rivals.  These  differences  of 
conclusion  appear  in  various  cases.  Obviously  such  gen¬ 
eral  propositions  cannot  be  of  final  value.  They  state  rights 
that  belong  to  both  parties  as  individuals  and  do  not  decide 
the  question  at  issue  because  the  contention  arises  from  the 
fact  that  both  parties  are  standing  upon  this  general  right. 
Each  is  endeavoring  to  force  the  other  to  yield. 

The  situation  then  resolves  itself  into  one  where  each  of 
two  parties  claims  the  same  right  and  each  is  seeking  to 


242 


AMERICAN  COURTS  IN  LABOR  CASES 


exercise  that  right  when  its  exercise  will  prevent  the  other 
party  from  the  same  privilege.  In  such  a  situation, — one 
in  which  each  party  claims  to  be  acting  within  its  right  in 
preventing  the  other  from  exercising  the  same  right, — it 
certainly  cannot  be  said  that  the  course  of  development  of 
legal  rights  has  reached  its  final  stage.  When  such  an  issue 
comes  before  a  court,  three  courses  seem  to  be  open.  The 
court  may  direct  the  parties  to  settle  their  differences  among 
themselves  by  some  sort  of  compromise,  in  the  meantime 
keeping  within  their  legal  rights  in  making  the  adjustment. 
This  might  and  very  frequently  does  lead  to  an  industrial 
deadlock.  Again,  the  court  may  fall  back  on  some  former 
interpretation  of  the  principle  and  accept  it  as  a  precedent 
for  the  present  case.  This  might  and  frequently  does  lead 
to  a  decision  favoring  one  of  the  parties  against  the  other. 
Such  a  course  very  probably  leads  to  the  interpretation  in 
favor  of  the  employer,  as  has  so  often  happened  in  the  past. 
Or  finally  if  the  judge  be  one  who  is  inclined  to  recognize 
the  disadvantage  of  the  employee  in  his  rivalry  with  the 
employer,  he  might  favor  the  employee  at  the  expense  of 
the  employer’s  equal  right.  Any  one  of  these  courses  may 
result  in  an  injustice.  The  court  may  recognize  this  and 
seek  a  fourth  course.  It  may  endeavor  to  reduce  the  right 
to  terms  that  will  allow  of  a  different  interpretation,  to  find 
some  superior  right  that  will  change  in  some  way  the  nature 
of  the  contention.  While  this  last  would  be  the  one  alto¬ 
gether  most  desirable,  it  might  very  probably  require  a 
boldness  in  departing  from  precedent  which  most  courts 
would  not  dare  to  exercise;  a  far  step  in  the  evolution  of 
legal  principles  that  judges  are  seldom  willing  to  take. 
However  great  the  difficulty  of  this  procedure  it  is  certain 
that  along  this  line  alone  will  real  progress  be  made. 

The  history  of  legal  adjustment  has  been  that  of  modify¬ 
ing  recognized  rights  in  order  to  establish  new  ones  better 


CONCLUSIONS 


243 


adjusted  to  new  conditions.  The  right  of  the  more  power¬ 
ful  to  take  what  he  was  able  to  seize  was  modified  in  the 
recognition  of  the  right  of  a  person  to  his  property  without 
regard  to  his  physical  ability  to  protect  it.  The  right  of 
one  party  in  a  contract  was  modified  by  the  conditions  that 
surrounded  the  agreement  when  the  contract  was  made. 
The  right  of  the  slave  owner  was  materially  modified  when 
slaves  were  made  free  persons.  So  the  employer  cannot 
employ  or  discharge  entirely  at  will.  The  laws  of  Minne¬ 
sota  and  Wyoming,  for  example,  declare  that,  “  Employers 
are  forbidden  to  require  as  a  condition  of  employment  the 
surrender  of  any  right  of  citizenship  or  to  discharge  candi¬ 
dates  because  of  their  nomination  for  an  election,  or  to 
interfere  in  the  matter  of  such  nomination. ”  “  In  nearly 

all  the  states  it  is  made  penal  or  criminal  for  any  person,  by 
threatening  to  discharge  an  employee  or  to  reduce  his  wages, 
or  by  promising  to  give  him  higher  wages,  or  otherwise,  to 
attempt  to  influence  a  voter  to  give  or  withhold  his  vote.”  1 
So,  also,  a  man  is  not  altogether  free  to  work  or  not  to  work 
as  he  pleases.  Vagrancy  and  “  non-support  ”  are  certainly 
very  real  limitations  while  there  is  the  sterner  economic 
law  that  he  who  will  not  work  may  not  eat. 

Modifications  are  being  made  slowly  but  inevitably. 
This  course  must  continue.  Rights  generally  regarded  as 
absolute  are  coming  to  be  regarded  after  all  as  only  relative. 
The  conflict  in  rights  governing  employment  of  labor  must 
be  eliminated.  Restrictions  must  be  so  placed  as  to  modify 
the  rights  to  such  a  degree  as  may  be  necessary.  Either 
the  courts  must  evolve  these  newer  principles  or  they  will 
be  established  through  some  other  agency  They  must  come 
in  some  way.  It  is  the  prime  duty  of  the  courts  to  formu¬ 
late  legal  principles  that  will  be  in  accord  with  prevailing 


1  Stimson,  Handbook,  p.  117. 


244 


AMERICAN  COURTS  IN  LABOR  CASES 


conditions  and  that  will  furnish  a  guide  for  parties  that  have 
differences  to  settle,  so  that  settlements  may  be  made  with¬ 
out  industrial  interruption  and  consequent  economic  waste. 

That  legal  generalities  should  be  worth  repeating  at  all 
in  opinions  is  pointed  out  by  Judge  Dodge  of  Wisconsin. 
He  admits  that  they 

do  not  greatly  advance  us  toward  any  a  priori  location  of  a  line 
of  demarcation.  They  amount  to  little  more  than  a  declara¬ 
tion  that  police  power  extends  to  such  measure  of  restraint  as 
is  consistent  with  liberty ;  and  liberty,  that  measure  of  free¬ 
dom  consistent  with  the  police  power.  .  .  .  This  impossibility 
of  exact  demarcation  characterizes  all  discussion  of  the  sub¬ 
ject,  yet  the  careful  expressions  of  these  alternative  concep¬ 
tions  of  properly  limited  government,  on  the  one  hand,  and  due 
freedom  from  restraint,  on  the  other,  are  useful  when  we  ap¬ 
proach  a  concrete  case.  Therefore  quotations  of  some  such 
expressions  may  be  helpful. 

When  one  reads  these  references  to  the  general  individual 
rights  as  they  occur  so  frequently  it  is  not  easy  to  avoid  the 
impression  that  though  stated  by  the  court  as  applicable  to 
all  alike,  the  application  is  made  in  such  a  way  as  to  favor 
one  side  only.  Granting  that  the  employer  may  hire  whom 
he  pleases  and  for  what  price  he  pleases,  and  also  that  the 
workman  may  work  for  whom  he  pleases  and  at  what  price 
he  pleases,  it  is  evident  that  when  the  two  cannot  agree  no 
working  relation  can  be  established.  A  compromise  must 
first  be  reached  as  to  conditions  and  wages.  If  one  yields 
more  than  he  may  wish,  which  ever  it  may  be,  the  process 
is  simply  the  “  higgling  of  the  market  ”  by  which  all  similar 
industrial  relations  are  adjusted.  Yet  as  a  matter  of  fact, 
as  revealed  in  the  opinions  themselves,  the  right  of  the 
employer  seems  to  pass  challenge  more  easily  than  does  the 
right  of  the  employee. 

The  matter  was  stated  very  recently  by  Justice  Harlan  of 


CONCLUSIONS 


245 


the  United  States  supreme  court  in  a  way  that  illustrates 
this  point  very  well.  “  It  was  the  right  of  the  defendant 
[employer]/’  declares  the  opinion,  "to  prescribe  the  terms 
upon  which  the  services  of  Coppage  would  be  accepted,  and 
it  was  the  right  of  Coppage  to  become  or  not,  as  he  chose, 
an  employee  of  the  railroad  company  upon  the  terms  offered 
to  him.”  Certainly  that  is  clear.  The  conditions  of  labor 
were  prescribed  by  the  employer.  The  employee  could  ac¬ 
cept  them  or  let  them  alone.  He  had  nothing  further  to  do 
or  say.  But  why  so?  Why  not,  so  far  as  the  court  was 
concerned,  say  that  it  was  the  right  of  the  employee  to 
prescribe  the  terms  upon  which  his  services  would  be  given 
and  the  right  of  the  railroad  to  become  or  not,  as  it  chose, 
an  employer  of  Coppage  upon  the  terms  offered.  And 
further,  as  the  railroad  was  an  association  of  stockholders 
who  had  delegated  their  authority  to  a  board  who  in  turn 
had  authorized  its  manager  to  act  for  it,  so  the  employees 
might  be  an  association  of  laborers  who  had  delegated  their 
authority  to  a  group  of  officers  who  m  turn  had  author¬ 
ized  an  agent  to  act.  The  court  supported  its  view  with  the 
general  proposition  that 

it  is  a  part  of  every  man’s  civil  rights  that  he  be  left  at  liberty 
to  refuse  business  relations  with  any  person  whomsoever, 
whether  the  refusal  rests  upon  reason,  or  is  the  result  of  whim, 
caprice,  prejudice  or  malice.  With  his  reasons  neither  the 
public  nor  third  persons  have  any  legal  concern.  It  is  also 
his  right  to  have  business  relations  with  anyone  with  whom  he 
can  make  contracts,  and,  if  he  is  wrongfully  deprived  of  this 
right  by  others,  he  is  entitled  to  redress. 

Suppose  this  general  proposition  to  be  stated  in  support  of 
the  employee.  The  difference  that  would  result  from  the 
reversal  of  the  case  would  be  that  instead  of  the  workman 
going  without  work  the  railroad  would  be  unable  to  operate 


AMERICAN  COURTS  IN  LABOR  CASES 


246 

unless  it  met  the  terms  prescribed.1  A  question  was  raised 
in  an  early  case  (1836)  that  is  still  very  pertinent. 
When  there  is  failure  fo  reach  an  agreement  and  industry 
is  halted,  “  upon  whom  should  the  blame  rest — upon  him 
who  refused  to  pay  or  him  who  refused  to  work  until  he 
was  paid?”  The  courts  seem  to  have  quite  fully  fallen 
into  the  habit  of  taking  it  for  granted  that  the  blame  is  with 
the  workmen,  that  it  is  for  the  employer  to  fix  the  conditions 
and  for  the  laborer  to  accept  or  reject  them  assuming  the 
responsibility  for  industrial  disturbance  if  he  rejects.  There 
is  clearly,  in  all  reality,  an  equal  obligation  and  an  equal 
responsibility,  if  both  parties  to  the  agreement  are  to  enjoy 
real  liberty.  Unless  either  may  assume  the  aggressive  in  the 
bargaining  for  wages  and  conditions  of  labor  the  liberty  and 
equality  are  not  real.  Bargaining  implies  that  each  seeks 
to  secure  concessions  from  the  other.  If  the  employee  has 
only  the  alternative  of  accepting  or  rejecting  the  conditions 
offered  by  the  employer,  the  bargaining  is  seriously  limited. 

Another  difficulty  is  that  arising  from  the  simple  fact  of 
organization.  The  right  to  organize  is  granted  as  has  been 
shown.  What  the  organization  may  do  and  what  its  au¬ 
thority  is  over  its  members  are  questions  of  practical  per¬ 
plexity.  This  comes  from  the  uncertainty  in  the  minds  of 
judges  as  to  what  the  unions  may  do.  The  rightful  pur¬ 
poses  of  organized  labor  could  hardly  be  accomplished 
without  running  counter  to  the  interests  at  some  point  of 
both  employers  and  non-union  men.  Here  arises  the  essen¬ 
tial  point;  is  the  activity  of  the  organization  for  the  pur- 

1  It  may  be  urged  that  the  case  here  referred  to  is  not  a  case  in  point, 
as  it  was  a  decision  against  a  law  which  forbade  an  employer  from 
discharging  an  employee  because  he  was  a  member  of  a  union.  That  is 
true  so  far  as  the  technical  decision  is  concerned.  Taking  the  opinion, 
however,  as  it  is  written,  the  attitude  assumed  is  not  changed  by  this 
technical  fact. 


CONCLUSIONS 


247 


pose  of  harming  others  or  for  reaping  an  advantage? 
Strange  as  it  may  seem,  this  difference  is  insisted  upon  and 
judges  seriously  undertake  to  decide  whether  a  strike  and 
its  prosecution  by  organized  means  has  for  its  object  the 
damage  of  others  or  the  benefit  of  the  strikers.  Some  de¬ 
nounce  the  prosecution  of  the  strike  on  the  ground  that  it  is 
intended  deliberately  to  do  harm  to  the  business  of  the 
employer.  One  would  have  difficulty  in  finding  discussions 
so  serious  and  so  involved  aiming  to  split  such  a  hair  out¬ 
side  of  labor-case  opinions.  The  strike,  it  is  reasoned,  is  be¬ 
ing  organized  to  do  a  damage  to  the  employer’s  business  in 
order  that  to  avoid  the  damage  the  employer  may  yield  to 
the  demands  of  the  strikers.  Or,  the  strike  is  organized  to 
do  a  damage  to  other  workmen  by  refusing  to  work  with 
them  and  thus  bring  about  their  discharge.  Certainly  if 
labor  unions  had  no  other  objects  than  those  expressed  in 
such  statements  there  would  have  been  small  chance  of  their 
coming  to  the  position  of  importance  and  legal  recognition 
that  they  now  occupy.  That  the  real  motive  lying  behind 
these  results  is  self-improvement  seems  not  to  appear  to  the 
minds  of  some  judges.  They  are  quite  ready  to  act  as 
interpreter  of  purposes  and  thus  to  characterize  acts  as  law¬ 
ful  or  unlawful  according  to  what  the  motive  appears  to  the 
court  to  be.  To  many  judges  this  matter  may  really  appear 
important.  In  many  of  the  opinions  however  it  appears 
almost  impossible  for  the  members  of  the  court  to  concede 
any  actions  by  these  organizations  as  legal  though  prac¬ 
tically  obliged  by  precedent  to  admit  the  legality  of  the  or¬ 
ganization  itself.  Instances  have  been  cited  where,  if  the 
view  of  the  court  is  to  be  accepted  as  a  final  one,  there  re¬ 
mains  nothing  for  the  organization  to  do  but  maintain  a 
mere  passive  existence.  To  some  judges  it  seems  that  even 
the  majority  view  of  the  members  of  a  union  if  imposed  on 
the  minority  is  an  infringement  upon  their  personal  liberty 


AMERICAN  COURTS  IN  LABOR  CASES 


248 

in  spite  of  the  fact  that  the  association  is  a  voluntary  one 
and  that  rules  and  by-laws  regularly  established  by  majority 
vote  must  be  enforceable  upon  all  if  the  association  is  to 
exist  at  all.  So  also  fines  on  members  for  failure  to  obey 
rules  appear  to  some  as  an  invasion  of  personal  liberty. 
The  delegation  of  power  by  an  association  is  not  recognized 
as  valid  by  some  while  others  admit  the  right  as  a  general 
proposition  but  are  not  able  to  recognize  it  in  a  particular 
instance.  In  these  and  other  similar  matters  many  courts 
.seem  to  have  set  themselves  steadily  against  the  attainment 
of  any  real  efficiency  in  organization  among  unions.  Con¬ 
cessions  are  made  generally  with  reluctance  if  made  at  all. 

In  one  place  the  court  recognizes  the  rights  of  a  union  so 
far  as  to  admit  that  it  may  seek  counsel  and  advice,  and 
persons  interested  in  its  welfare  may  aid  m  securing  terms  of 
employment  that  are  most  satisfactory.  The  members  have 
the  right  to  appoint  officers  and  to  authorize  them  to  order 
members  to  leave  their  positions.  One  of  the  judges  who 
expresses  his  recognition  of  such  rights  as  these  says  in 
another  case:  “Though  we  cannot  enjoin  the  engineers 
from  unlawfully  quitting,  it  does  not  follow  that  we  may 
not  enjoin  Arthur  from  ordering  them  to  do  so.”  This 
seems  very  much  like  admitting  that  while  the  court  could 
not  enjoin  the  engineers  from  unlawfully  quitting  it  could 
enjoin  them  from  deciding  through  a  representative  chosen 
for  the  purpose  to  do  so. 

A  man  may  say,  “  I  will  stop  work,”  and  be  entirely 
within  his  right.  If  he  says,  “  I  will  stop  work  in  company 
with  all  my  associates  unless  you  make  the  change  in  condi¬ 
tions  that  we  all  desire,”  he  is  guilty  of  a  “  threat  ”  and 
may  be  charged  with  an  intent  to  damage  his  employer’s 
business.  When  an  organization  is  too  weak  to  be  of  any 
service  one  judge,  as  Judge  Burch  of  Kansas,  declares  that 
the  wage  earners’  liberty  of  choice  in  making  a  bargain  is 


CONCLUSIONS 


249 


“  a  myth  or  rather  ...  a  heartless  mockery.”  When  the 
organization  becomes  strong  enough  to  be  of  some  conse¬ 
quence  a  judge  becomes  concerned  about  the  employer,  as 
in  time  of  a  strike  by  workingmen  in  insisting  upon  their 
demands  Chief  Justice  Beasley  of  New  Jersey  declared  that 
“  I11  such  a  condition  of  affairs  [concerted  action  by  a  num¬ 
ber  of  employees]  it  is  idle  to  suggest  that  the  manufacturer 
is  free  to  reject  the  terms  which  the  confederates  offer.” 

The  various  differences  of  view  may  be  finally  summed  up 
in  the  expressions  chosen  from  two  opinions.  “  The  legal¬ 
ity  of  a  strike,”  says  Judge  Loring,  “  depends  upon  the 
purpose  for  which  the  employees  strike.”  For,  as  Judge 
Vann  insists,  the  purpose  of  a  strike  must  be  “  not  to  gratify 
malice  or  inflict  injury  on  others  but  to  secure  better  terms 
of  employment  for  themselves;  not  to  harm  others  but  to 
improve  their  own  condition.”  In  opposition  to  this  view 
Judge  Parker  declares  “the  right  of  one  man  to  refuse  to 
work  for  another  on  any  ground  that  he  may  regard  as 
sufficient  and  the  employer  has  no  right  to  demand  a 
reason  for  it.”  The  reasons  for  undertaking  the  strike,  he 
continues, 

may  seem  inadequate  to  others,  but,  if  it  seems  to  be  in  their 
interest  as  members  of  an  organization  to  refuse  longer  to- 
work,  it  is  their  legal  right  to  stop.  The  reason  may  no  more 
be  demanded,  as  a  right,  of  the  organization  than  of  an  in¬ 
dividual;  but  if  they  elect  to  state  the  reason,  their  right  to 
stop  work  is  not  cut  off  because  the  reason  seems  inadequate 
or  selfish  to  the  employer  or  to  organized  society. 

The  essence  of  the  difference  here  is  in  the  importance  of  the 
purpose  of  a  strike  in  determining  its  legality.  In  one  view 
the  legality  depends  directly  upon  the  purpose.  In  the  other 
the  purpose  is  not  material  since  the  strikers  need  not  state 
it  unless  they  choose.  If  they  do  state  it,  it  is  of  no  conse- 


250 


AMERICAN  COURTS  IN  LABOR  CASES 


quence.  Court  opinion  cannot  be  said  to  have  settled  into 
its  final  form  so  long  as  judges  continue  to  choose  between 
these  two  views,  following  in  some  cases  the  one  and  in 
some  the  other.  Either  the  purpose  is  material  or  it  is  not. 
To  determine  which  it  is  becomes  of  great  importance. 

If  the  whole  matter  of  purpose  is  to  be  set  aside,  as  Judge 
Parker  sets  it  aside,  the  courts  must  abandon  very  much  of 
the  control  that  they  have  in  the  past  assumed  to  exercise 
over  various  trade-union  activities.  This  would  seem  to 
many  judges  a  dangerous  course.  It  would  give  the  union 
man  a  decided  advantage  over  his  non-union  rival.  It 
would  enable  him  by  a  threat  to  strike  to  put  powerful 
pressure  upon  the  employer  to  cause  the  discharge  of  non¬ 
union  men.  Such  latitude  judges  seem  unable  to  grant 
to  organizations  of  laborers.  The  restraints  upon  the  ac~ 
tions  of  union  men,  such  as  those  against  lawlessness  in  its 
various  forms,  seem  to  many  judicial  minds  wholy  inade¬ 
quate  as  a  means  of  control. 

On  the  other  hand  if  purpose  is  to  be  a  criterion  for 
judging  of  the  legality  of  these  several  classes  of  acts  the 
matter  seems  under  much  more  effective  control  and  doubt¬ 
less  to  the  judges  seems  under  much  safer  control.  If  the 
purpose  seems  a  worthy  one,  the  courts  may  hold  the  actions 
legal.  If  the  purpose  seems  unworthy  then  by  very  fact  of 
its  unworthiness  the  acts  may  be  declared  illegal. 

Two  objections  stand  against  this  latter  course,  however, 
each  one  of  which  is  of  practical  importance.  If  the  courts 
are  to  pass  upon  the  legality  of  the  purposes,  that  must  mean 
in  practice  that  the  judges  are  to  do  so.  The  judges  do  not 
look  at  these  matters  all  from  the  same  angle.  Their  views 
of  life  are  various,  their  training  different  and  their  notions 
of  labor  unions  formed  through  channels  other  than  a  direct 
study  of  their  activities.  The  judicial  view  as  to  the 
worthiness  of  a  purpose  would  be  inevitably,  almost,  that 


CONCLUSIONS 


25 1 


which  the  judge  read  into  the  case  as  a  result  of  training 
and  former  experiences.  Another  result  of  such  a  course 
would  be  the  setting-up  of  almost  as  many  standards  as 
there  are  individual  judges  or  separate  courts.  It  is  unfor¬ 
tunate  now  that  acts  done  within  some  jurisdictions  are 
found  to  be  illegal  when  these  same  acts  are  in  other 
jurisdictions  legal. 

A  second  objection,  and  a  more  serious  one,  lies  in  the 
extreme  difficulty  of  determining  what  the  purpose  in  fact  is. 
The  acts  may  be  clear.  Their  effects  may  be  evident.  But 
the  purposes  that  prompt  them  are  by  no  means  so  obvious. 
Thus  the  court  would  be  in  a  constant  perplexity  in  an 
endeavor  to  distinguish  motives.  The  Massachusetts  court 
in  Willcutt  v.  Bricklayers  had  to  consider  a  strike  that  had 
four  objects.  One  was  an  increase  of  wages.  Another 
was  for  a  shorter  day.  A  third  was  that  all  foremen  should 
be  members  of  the  union.  A  fourth,  that  the  business  agent 
of  the  unions  should  be  allowed  to  visit  the  buildings  under 
construction.  The  employer  returned  a  blanket  refusal 
to  all  the  demands.  That  was  interpreted  by  the  court  as  a 
refusal  to  the  demand  for  a  better  wage  and  shorter  day. 
The  strike  was  then  regarded  by  the  court  as  a  strike  for 
that  purpose  and  therefore  lawful.  Suppose  a  different 
view  had  been  taken  by  the  court.  Suppose  they  had  re¬ 
garded  the  employer’s  blanket  refusal  as  a  refusal  to  em¬ 
ploy  union  foremen  and  to  allow  business  agents  to  visit  the 
work.  That  might  have  changed  the  purpose  from  a  lawful 
one  to  an  unlawful  one  and  thus  characterized  the  strike 
itself  as  unlawful. 

The  employees  of  a  street  railway  company  in  an  eastern 
city  struck  because  the  company  employed  some  non-union 
men.  After  the  strike  had  been  called  the  officers  of  the 
union  went  to  an  attorney  to  secure  his  legal  services. 
When  he  learned  that  the  strike  was  one  for  a  closed  shop 


AMERICAN  COURTS  IN  LABOR  CASES 


252 

on  the  road  he  refused  to  act  as  counsel  unless  the  strikers 
included  in  their  demands  an  advance  in  wages.  His  sug¬ 
gestion  was  acted  upon  and  the  strike  was  fought  to  the  end 
on  the  demand  for  an  increase  in  wages  and  for  the  discha 
of  certain  non-union  men.  This  extension  could  be  made  at 
any  time  and  in  connection  with  any  strike.  As  soon  as 
it  became  known  what  purposes  certain  courts  would  endorse 
those  assumed  purposes  could  be  coupled  with  the  real  ob¬ 
jects  and  so  long  as  a  general  refusal  was  made  to  all  the 
demands,  according  to  the  precedent  of  the  Massachusetts 
court,  the  legality  would  be  established. 

Extracts  have  been  cited  in  preceding  chapters  that  indi¬ 
cate  very  dearly  how  difficult  it  is  to  state  the  real  purpose 
of  any  given  strike.  A  strike  is  announced  as  having  for 
its  object  the  driving  out  of  non-union  men  so  as  to  make 
places  for  unionists.  I11  such  a  case  one  view  may  be  that 
the  purpose  is  primarily  to  injure  the  non-union  men.  The 
other  view  may  be  that  it  is  primarily  to  benefit  the  members 
of  the  union.  This  is  expressed  by  Judge  Goode  in  an  ef¬ 
fort  to  emphasize  immediate  purpose  as  against  ultimate 
purpose.  He  refers  to  a  case  where  “  the  immediate  pur¬ 
pose  is  to  cause  the  discharge  of  an  obnoxious  fellow  ser¬ 
vant,  even  though  the  ultimate  purpose  may  be  the  attain¬ 
ment  of  better  economic  and  social  conditions.”  This  does 
not  seem  to  aid  much  in  the  adjustment.  The  outcome  of 
efforts  to  base  legality  of  actions  on  purposes  seems  not 
likely  to  lead  to  very  satisfactory  results. 

No  statement  could  be  made  more  sweeping  than  the  fre¬ 
quently  cited  words  of  judge  Cooley  in  his  treatise  on  Torts. 

It  is  a  part  of  every  man’s  civil  rights,  that  he  be  left  at 
liberty  to  refuse  business  relations  with  any  other  person 
whomsoever,  whether  the  refusal  rests  upon  reason,  or  is  the 
result  of  whim,  caprice,  prejudice  or  malice.  With  his  reasons 
neither  the  public  nor  third  persons  have  any  legal  concern. 


CONCLUSIONS 


253 


It  is  also  his  right  to  have  business  relations  with  anyone  with 
whom  he  can  make  contracts,  and,  if  he  is  wrongfully  de¬ 
prived  of  this  right  by  others,  he  is  entitled  to  redress. 

Taking  the  meaning  of  these  words  apart  from  any  context 
they  may  be  made  to  support  the  contention  of  the  employer 
in  discharging  his  workmen,  the  non-union  man  who  is  be¬ 
ing  interfered  with  by  union  men,  and  the  union  men  them¬ 
selves  in  their  efforts  to  drive  out  non-union  rivals.  If  the 
principle  involved  in  the  statement  be  accepted  as  the  final 
word,  especially  in  that  part  that  insists  that  refusal  to 
work  may  rest  upon  reason  or  upon  whim,  caprice,  pre¬ 
judice  or  malice,  and  that  the  refusal  cannot  be  called  in 
question  by  either  the  public  or  third  persons,  then  purpose 
as  a  criterion  must  pass  and  some  other  means  of  regulating 
the  whole  situation  be  adopted. 

The  conclusions  drawn  from  all  these  opinions  and  their 
various  ramifications  must  be  that  courts  have  not  yet  de¬ 
veloped  legal  principles  which  will  stand  the  test  of  con¬ 
sistency  and  practicality  in  defining  the  legal  limits  of  trade- 
union  activity.  Only  the  mere  outlines  of  such  a  body  of 
principles  yet  appear.  A  concrete  expression  of  this  is 
found  in  the  words  of  Judge  Reed  when  discussing  a  case 
characterized  as  coercion.  “  There  is  no  contrariety  of  judi¬ 
cial  view  in  respect  to  the  illegality  in  the  use  of  any  act 
which  is  calculated  to  coerce,  but  in  respect  to  what  acts  are 
to  be  regarded  as  coercive  there  is  naturally  more  differ¬ 
ence  in  judicial  sentiment.”  The  same  is  true  in  respect 
to  the  meaning  to  be  attached  to  intimidation,  threat,  con¬ 
spiracy,  and  other  like  terms.  There  is  less  contrariety  of 
view  in  respect  to  the  act,  but  very  much  more  as  to  what 
comes  within  the  legal  meaning  of  the  term.  In  many  cases 
a  prejudice  is  created  at  the  very  outset  by  the  skilful  use 
of  these  terms  in  the  indictment  Some  judges  have  shown 
themselves  to  be  on  their  guard  by  insisting  upon  para- 


254 


AMERICAN  COURTS  IN  LABOR  CASES 


phrasing  the  expressions.  The  substitution  of  the  word  an¬ 
nounce  in  place  of  the  word  threat,  for  example,  creates 
quite  a  different  impression  in  the  charge  made  in  the  in¬ 
dictment.  Judge  Halloway  insists  that  the  indictment  be¬ 
fore  it  is  allowed  to  stand  as  influencing  the  court  shall  be 
“  stripped  of  all  useless  verbiage.”  The  charge  in  the  in¬ 
dictment  is  then  restated  by  the  court  after  the  “  stripping  ” 
had  been  done.  An  especially  interesting  instance  of  this  is 
found  in  Commonwealth  v.  Hunt,  the  case  that  came  before 
the  Massachusetts  court  in  1842.  The  indictment  in  all  of 
its  several  counts  is  reviewed  by  Chief  Justice  Shaw  and 
commented  on.  Much  of  the  indictment  he  says  is  “  mere 
recital.”  “  Stripped  then  of  these  introductory  recitals 
and  alleged  injurious  consequences,  and  of  the  qualifying 
epithets  attached  to  the  facts  [such  as  unlawfully  and  de¬ 
ceitfully  designing  and  intending  unjustly  to  extort  great 
sums]  the  averment  is  this.”  The  whole  indictment  cov¬ 
ering  several  pages  is  then  stated  as  follows :  “  that  the  de¬ 
fendants  and  others  formed  themselves  into  a  society,  and 
agreed  not  to  work  for  any  person,  who  should  employ  any 
journeyman  or  other  person,  not  a  member  of  such  society, 
after  notice  given  him  to  discharge  such  workman.” 

It  is  in  the  working  out  of  modern  meanings  for  these 
terms  that  courts  have  a  responsibility.  Modern  conditions 
mean  new  forces,  new  activities,  new  methods  of  rivalry. 
To  keep  all  these  well  classified  with  reference  to  the  old 
terms  is  a  task  which  the  courts  must  assume. 

It  is  not  an  easy  task  to  sum  up  fully  the  differences  that 
appear  in  all  these  opinions.  The  circumstances  of  the  case 
sometimes  make  it  doubtful  what  the  general  legal  principle 
is.  But  among  the  doubtful  points  that  are  of  importance 
are  certainly  the  following. 

There  is  difference  of  opinion  as  to  what  means  may  law¬ 
fully  be  used  by  union  workingmen  in  their  efforts  to  se- 


CONCLUSIONS 


O  **  ** 

~0D 

cure  discharge  of  other  workingmen  not  members  of  a 
union,  or  in  some  cases  members  of  a  rival  union. 

There  is  difference  of  opinion  as  to  what  the  effect  of 
combination  will  be.  Some  acts  are  clearly  legal  if  done 
by  a  single  individual.  These  same  acts  if  done  by  con¬ 
certed  action  of  a  combination  of  individuals  may  or  may 
not  be  illegal,  they  may  or  may  not  amount  to  a  conspiracy. 
What  one  may  do  all  may  do  is  a  rule  accepted  in  some 
courts  but  not  in  others. 

There  is  a  difference  of  opinion  as  to  what  will  be  the 
effect  upon  the  legality  of  an  act  if  it  can  be  shown  that  the 
act  was  inspired  by  a  “malevolent  design  to  injure  ”  an¬ 
other  workman  rather  than  by  a  desire  to  secure  his  job 
for  union  men. 

There  is  a  difference  of  opinion  as  to  what  control  the 
union  may  lawfully  exercise  over  its  members,  what  author¬ 
ity  it  may  delegate  to  its  officers  or  agents,  or  what  it 
may  do  to  induce  men  to  join  its  membership. 

Aggravating  as  many  of  the  decisions  may  be,  it  cannot 
be  denied  that  progress  toward  a  solution  of  the  difficulties 
is  evident.  The  unions  receive  fuller  recognition  in  the 
courts  than  they  did  a  century  ago.  The  stern  logic  of  cir¬ 
cumstances  is  forcing  a  recognition  of  the  rights  of  unions 
to  do  something  more  than  merely  to  exist.  But  just  what 
they  may  do  is  a  question  not  yet  fully  determined.  The 
recognition  of  the  applicability  of  general  propositions  of 
law  to  men  in  unions  as  well  as  to  men  not  in  unions  is 
the  broadest  basis  of  hope.  The  stern  determination,  on  the 
other  hand,  to  give  new  meanings  to  such  terms  as 
coercion,  intimidation  and  threat,  is  also  a  sign  of  progress, 
though  it  may  lead  to  a  restriction  of  activities  on  the  part 
of  the  unions. 

If  the  courts  are  to  come  generally  to  the  view  that  trade- 
union  activity  is  after  all  but  a  phase  of  more  general  in- 


AMERICAN  COURTS  IN  LABOR  CASES 


256 

dustrial  competition,  the  issue  between  competition  and 
monopoly  will  become  one  of  prime  importance.  What  the 
outcome  of  this  issue  is  to  be  in  the  broader  held  is  yet  un¬ 
certain.  This  outcome  whatever  it  may  be  will  have  a  wide 
influence  in  finally  determining  the  yet  open  questions  with¬ 
in  the  field  of  labor. 

The  courts  have  seen  fit  to  recognize  as  lawful  a  large 
degree  of  organization  and  co-operation  in  trade  and  among 
capitalists  even  though  the  “  non-union  ”  trader  and  capi¬ 
talist  has  insisted  upon  his  right  to  remain  independent.  A 
similar  course  with  organized  labor  would  indicate  a  similar 
effect  upon  the  non-union  laborer.  These  changes  in  view 
are  inevitable  though  'they  may  come  slowly.  Combination 
on  the  side  of  capital  is  evident.  It  has  legal  recognition. 
It  is  inevitable.  It  has  become  powerful.  Combination  on 
the  side  of  labor  is  also  evident;  it  also  has  legal  recogni¬ 
tion;  it  is  also  inevitable.  The  lesson  as  Justice  Holmes 
points  it  out  is  that  “  combination  on  the  one  side  [capital] 
is  patent  and  powerful.  Combination  on  the  other  [labor] 
is  the  necessary  and  desirable  counterpart,  if  the  battle  is  to 
be  carried  on  in  a  fair  and  equal  way.”  To  treat  the  em¬ 
ployer  in  a  manner  that  admits  of  combination  and  the  em¬ 
ployee  in  a  manner  dictated  by  individualism  is  to  create 
a  never  ending  cause  of  trouble.  Ex-Secretary  Olney  is 
quoted  as  saying  that  “  the  mass  of  wage  earners  can  no 
longer  be  dealt  with  by  capital  as  so  many  isolated  units. 
The  time  is  past  when  the  individual  workman  is  called 
upon  to  pit  his  single  feeble  strength  against  the  might  of 
organized  capital.”  What  is  true  of  capital’s  dealings  with 
wage  earners  is  also  true  of  the  court’s  dealings  with  them. 
Individualism  has  so  dominated  the  minds  of  judges  that  even 
in  the  face  of  their  admission  of  the  right  to  form  organiza¬ 
tions  they  insist  upon  treating  the  members  of  these  organi¬ 
zations  as  individuals  only.  “  One  fundamental  difficulty,” 


CONCLUSIONS 


257 


says  Blackmore  “  with  the  position  of  the  majority  is  that 
it  persists  in  regarding  the  members  of  the  union  as  separate 
individuals  and  the  act  of  the  union  officials  as  the  act  of 
a  third  party  when  there  are  many  authorities  to  the  effect 
that  the  laborers  have  a  right  to  combine  and  be  treated  as  a 
unit.”  1 

Perhaps  the  most  difficult  of  all  the  several  tasks  that 
fall  to  the  courts  from  this  class  of  cases  is  to  preserve  all 
that  is  valuable  in  individualism  in  the  form  of  individual 
rights  and  at  the  same  time  to  make  room  for  that  organi¬ 
zation  which  in  modern  industrial  society  is  so  necessary 
and  so  inevitable  in  the  form  of  socialization  and  social 
rights. 

1  “  Intimidation  by  Fines  in  Labor  Disputes,”  Green  Bag ,  vol.  20,  p. 
620,  Dec.,  1908. 


i 


PART  III 


LEGISLATION 


CHAPTER  XIV 


Payment  of  Wages 

One  of  the  questions  that  has  given  rise  to  important 
differences  of  opinion  is  as  to  the  time  for  the  payment  of 
wages.  Legislation  has  been  secured  requiring  payment 
at  regular  stated  intervals.  One  week  is  the  period  usually 
adopted.  On  the  constitutionality  of  such  legislation  the 
courts  have  taken  very  diverse  views.  When  upheld,  it  has 
usually  been  on  the  ground  of  the  evident  intent  of  the  legis¬ 
lators  to  improve  existing  conditions.  When  declared  in¬ 
valid,  on  the  other  hand,  it  has  been  on  the  grounds  usually 
urged  against  labor  legislation. 

In  State  v.  Brown  and  Sharpe,  Judge  Rogers  of  Rhode 
Island  argued  the  advantage  of  the  corporation  over  the 
individual  workman  in  the  adjustment  of  the  conditions  of 
employment.  Unless  the  employees  are  paid  at  regular 
intervals  their  real  wages  are  less  than  their  nominal  wages. 
This  is  because  they  are  frequently 

dependent  upon  their  current  wages  for  their  daily  bread. 
If  they  get  credit,  they  must  pay  for  it,  as  others  do,  and,  in 
proportion  to  their  inability  to  pay  cash  and  the  risk  in  trust¬ 
ing  them,  they  have  to  pay  for  the  time  indulgence  they  ob¬ 
tain.  To  save  labor  and  expense,  many  corporate  pay  rolls 
were  made  up  but  12  or  13  times  a  year,  and  sometimes,  when 
corporate  means  were  cramped,  even  less  often,  whereby  em¬ 
ployees  were  obliged  to  wait  for  their  pay,  and  the  longer  they 
had  to  wait  the  less  it  was  worth  to  them. 

The  counsel  for  the  defense  had  evidently  argued  that  the 

261 


262 


AMERICAN  COURTS  IN  LABOR  CASES 


workmen  were  not  obliged  to  take  the  work  unless  they 
wished ;  that  the  agreement  was  a  voluntary  contract.  The 
opinion  states  in  reply  to  this  view  that  “  poverty  and  weak¬ 
ness  can  wage  but  an  unequal  contest  with  corporate  wealth 
and  power,”  that  employees  “  too  often  in  the  sharp  and 
bitter  competition  for  work,  have  to  submit  to  such  terms 
and  conditions  as  their  employers  see  fit  to  prescribe.”  The 
conclusion  reached  in  the  opinion  is  that  the  law  “  was 
clearly  passed  in  the  interest  of  the  employee,  and  it  is  not 
easy  to  see  how  it  would  operate  to  his  disadvantage.” 

The  same  question  of  right  to  contract  was  raised  by 
Judge  Morrow  of  California  who  disposed  of  the  objection 
in  the  following  words : 

As  far  as  these  two  sections  are  concerned,  ...  it  does 
not  appear  in  what  respects  defendant  is  deprived  of  any 
liberty  in  making  contracts  by  reason  of  these  enactments. 
They  simply  constitute  an  effort  to  secure  the  regular  pay¬ 
ment  to  the  employee  of  a  corporation,  by  such  corporation, 
of  the  wages  to  which  he  is  entitled  by  virtue  of  his  work  per¬ 
formed,  and  an  effort  to  make  his  legal  remedy  for  the  irregu¬ 
lar  payment  of  such  wages  as  little  troublesome  and  as  little 
expensive  as  possible.  The  contention  of  defendant  as  to  the 
unconstitutionality  of  the  statute  must  be  denied.  (Skinner  v. 
Garnett  Mining  Co.) 

Representing  the  opposite  line  of  reasoning  opinions  have 
been  written  by  courts  of  other  states  upon  laws  that  apply 
practically  the  same  remedy.  Judge  Cooper  of  California 
found  the  law  invalid  and  stated  as  a  reason  the  following: 

The  corporation  and  the  laborer  are  prohibited  from  making 
any  contract  whereby  wages  are  to  become  due  for  a  longer 
period  than  one  month  as  a  condition  of  employment,  or  by 
which  the  laborer  is  to  be  paid  in  anything  except  money  or 
negotiable  checks.  The  working  man  of  intelligence  is  treated 
as  an  imbecile.  Being  over  21  years  of  age,  and  not  a  lunatic 


PAYMENT  OF  W AGES 


263 

or  insane,  he  is  deprived  of  the  right  to  make  a  contract  as  to 
the  time  when  his  wages  shall  become  due.  Being  of  sound 
mind,  and  knowing  the  value  of  a  horse,  he  is  not  allowed  to 
make  an  agreement  with  the  corporation  that  he  will  work 
60  days  and  take  the  horse  in  payment.  Business  might  be 
such  that  a  corporation  could  not  possibly  pay  wages  without 
getting  laborers  who  were  willing  to  wait  for  their  wages  until 
the  corporation  could  get  money  with  which  to  pay  them  by 
marketing  its  products.  The  laborer  might  be  interested  in 
the  corporation,  or  for  some  reason  willing  to  wait  until  the 
corporation  could  pay  him.  Yet  the  parties,  being  able  to  con¬ 
tract  and  willing  to  contract,  and  desiring  for  the  good  of  each 
other  to  contract,  are  by  this  statute  forbidden  to  do  so. 
(Johnson  v.  Goodyear  Mining  Co.) 

In  Republic  Iron  and  Steel  Co.  v.  State  the  attorney  gen¬ 
eral  had  emphasized  the  inequality  of  bargaining  power  be¬ 
tween  employers  and  employees  and  had  argued  that  the 
law  was  justified  on  the  ground  that  it  tended  to  equalize  the 
conditions.  To  this  line  of  argument  the  court  in  the 
opinion  opposed  the  constitution  itself,  and  regarded  its 
provisions  as  a  sufficient  obstacle  to  the  acceptance  of  the 
law.  Chief  Justice  Hadley  of  Indiana  stated  the  view  in 
his  opinion  as  follows: 

Assuming  all  these  things  to  be  true,  they  do  not  of  them¬ 
selves  justify  the  arbitrary  invasion  of  the  personal  rights  and 
liberty  of  the  citizen.  Liberty  to  contract  on  one’s  own  terms, 
to  decide  for  himself  his  own  employment,  to  buy  and  sell,  to 
exchange  one  belonging  for  another,  are  among  his  most  val¬ 
uable  and  cherished  rights.  .  .  .  “  If  there  is  one  thing  more 
than  another,”  says  Justice  Shiras,  “  public  policy  requires, 
it  is  that  men  of  full  age  and  competent  understanding  shall 
have  the  utmost  liberty  of  contracting,  and  that  their  contracts, 
when  entered  into  freely  and  voluntarily,  shall  be  held  sacred 
and  shall  be  enforced  by  courts  of  justice.” 

Is  the  statute  in  question  a  reasonable  regulation,  and  rea- 


AMERICAN  COURTS  IN  LABOR  CASES 


264 

sonable  in  its  operation  upon  the  persons  whom  it  affects? 
The  contract  prohibited  affects  employer  and  employee  alike. 
If  the  master  can  employ  only  upon  terms  of  weekly  payment, 
the  workman  can  find  employment  on  no  other  terms.  It  will 
be  observed  that  the  statute  gives  the  parties  no  choice — no 
right  to  waive  the  provisions  of  the  law.  .  .  .  The  obvious 
intention  of  the  legislature  was  to  make  contracts  for  persons 
that  they  would  not  in  all  cases  make  for  themselves,  and  to 
forbid  the  making  of  contracts  that  they  would  make.  The 
laborer  may  be  the  chief  sufferer.  His  labor  may  be  the  only 
means  of  supplying  himself  and  family,  but  by  this  law  he  is 
denied  the  right  to  work,  and  another  the  right  to  employ  him, 
unless  he  can  be  paid  once  a  week.  Any  law  or  policy  that  dis¬ 
ables  the  citizen  from  making  a  contract  whereby  he  may  find 
lawful,  needed,  and  satisfactory  employment  is  unreasonable. 
It  may  be  that  the  workman  will  desire  and  request  his  em¬ 
ployer,  as  conducive  to  economy  and  saving,  to  keep  back  all 
wages  not  needed  for  current  necessities.  Whether  he  leaves 
his  surplus  earnings  with  his  employer,  or  deposits  them  with 
the  building  and  loan  association  or  with  the  savings  bank, 
involves  no  public  interest  and  affects  no  public  concern.  .  .  . 
The  statute  places  the  wage  earners  of  the  state  under  quasi 
guardianship.  It  classes  them  with  minors  and  other  persons 
under  legal  disability,  by  making  their  contracts  void  at  the 
pleasure  of  a  public  officer.  It  tends  to  degrade  them  as  citi¬ 
zens,  by  impeaching  their  ability  to  take  care  of  themselves. 
It  is  paternalism,  pure  and  simple,  and  in  violent  conflict  with 
the  liberty  and  equality  theory  of  our  institutions. 

As  to  the  legal  requirement  of  payment  of  wages  in 
money  there  is  very  much  the  same  difference  of  view.  A 
decision  of  more  than  ordinary  interest  is  Shaffer  and  Munn 
v.  Union  Mining  Co.  The  interest  lies  not  so  much  in  the 
fact  that  the  opinion  makes  use  of  the  conventional  phrases 
about  liberty  and  property,  but  rather  that  it  adopts  the 
point  of  view  of  the  employee  rather  than  that  of  the  em¬ 
ployer  in  the  application  of  these  phrases.  Judge  Irving 


PAYMENT  OF  WAGES  265 

of  Maryland  expressed  the  view  of  the  court,  in  part  as 
follows : 

This  statute  was  evidently  conceived  and  enacted  for  the 
purpose  of  correcting  some  evil  which  had  resulted  to  the  em¬ 
ployees  of  such  corporations  as  are  described  in  the  Act,  and 
perchance  to  the  community  also,  from  the  mode  in  which 
these  corporations  had  been  wont  to  deal  with  their  operatives. 
The  statute  was  manifestly  intended  to  be  in  the  interest  of 
the  employees.  We  suppose  it  must  have  been  intended  to 
protect  the  employee  from  further  exactions,  extortion  or 
over-reaching  supposed  to  have  affected  them  injuriously  in 
the  past.  Being  protective  in  its  character,  it  cannot  have 
been  intended  as  restrictive  of  the  employee’s  rights,  except 
in  so  far  as  it  prevents  his  colluding  with  the  employer  to  do 
what  the  law  forbade  the  corporation  to  do.  The  Legislature 
is  always  presumed  to  have  intended  a  constitutional  exercise 
of  power ;  and  laws  will  be  so  construed  as  to  make  their  pro¬ 
visions  lawful  if  possible.  It  cannot  be  supposed  the  Legis¬ 
lature  intended  to  impose  a  restriction  upon  these  employees, 
which  would  have  been  an  unconstitutional  invasion  of  their 
rights.  ... 

To  accord  to  this  law  the  construction  contended  for  by 
the  appellee,  and  which  was  given  it  by  the  learned  Judge 
who  decided  this  case  below,  would  be  doing  unwarranted  vio¬ 
lence  to  the  rights  of  the  employees  over  the  fruits  of  their 
own  labor.  It  would  be  preventing  their  use  of  their  wages, 
which  might  have  been  accumulating  in  the  employer’s  hands, 
in  the  purchase  of  property,  real  or  personal,  and  taking  con¬ 
veyance  therefor.  If  the  employer  should  be  slothful  in  pay¬ 
ment  it  would  prevent  his  employee,  however  straitened  for 
the  want  of  it,  using  his  overdue  wages  by  transfer  as  other 
people  do  their  choses  in  action.  It  would  have,  also,  the 
further  effect  of  preventing  other  citizens  investing  their  funds 
in  the  debts  of  such  corporation,  if  they  should  so  desire. 
Such  cannot  have  been  its  intention,  and  ought  not  to  be  held 
its  legitimate  result. 


266 


AMERICAN  COURTS  IN  LABOR  CASES 


The  United  States  supreme  court  has  expressed  itself  on 
this  proposition,  throwing  the  weight  of  its  influence  on  the 
side  of  the  reasonableness  of  the  principle  involved.  The 
matter  came  before  it  in  Knoxville  Iron  Co.  v.  Harbison, 
a  case  appealed  from  the  supreme  court  of  Tennessee. 
Justice  Shiras  wrote  the  opinion,  following  closely  the  views 
expressed  by  the  Tennessee  court  and  quoting  freely  from 
it.  Quoting  the  Tennessee  opinion: 

The  legislature  evidently  deemed  the  laborer  at  some  dis¬ 
advantage  under  existing  laws  and  customs,  and  by  this  act 
undertook  to  ameliorate  his  condition  in  some  measure  by  en¬ 
abling  him  or  his  bona-fide  transferee,  at  his  election  and  at  a 
proper  time,  to  demand  and  receive  his  unpaid  wages  in  money 
rather  than  in  something  less  valuable.  Its  tendency,  though 
slight  it  may  be,  is  to  place  the  employer  and  employee  upon 
equal  ground  in  the  matter  of  wages,  and,  so  far  as  calculated 
to  accomplish  that  end,  it  deserves  commendation.  .  .  . 

The  act  before  us  is,  perhaps,  less  stringent  than  any  one 
considered  in  any  of  the  cases  mentioned.  It  is  neither  pro¬ 
hibitory  nor  penal ;  not  special,  but  general ;  tending  towards 
equality  between  employer  and  employee  in  the  matter  of 
wages ;  intended  and  well  calculated  to  promote  peace  and  good 
order,  and  to  prevent  strife,  violence,  and  bloodshed.  Such 
being  the  character,  purpose,  and  tendency  of  the  act,  we  have 
no  hesitation  in  holding  that  it  is  valid,  both  as  general  legis¬ 
lation,  without  reference  to  the  state’s  reserved  police  power, 
and  also  as  a  wholesome  regulation  adopted  in  the  proper  ex¬ 
ercise  of  that  power. 

Following  these  quoted  statements  the  court  expresses 
more  fully  its  view  of  the  police  power.  This  power  “  must 
be  expected  and  allowed  to  expand,  and  take  in  new  sub¬ 
jects  from  time  to  time;  as  trade  and  business  advance, 
and  new  conditions  arise.”  The  final  test  is  that  of  reason¬ 
ableness.  “  It  shall  not  arbitrarily  or  unreasonably  affect 


PAYMENT  OF  WAGES 


26  7 

the  citizen  in  his  life,  liberty,  and  property.”  In  the  exer¬ 
cise  of  this  right  “  a  large  discretion  is  necessarily  vested 
in  the  legislature,  which,  in  the  first  instance,  is  presumed 
to  know,  not  only  what  the  welfare  of  the  public  requires, 
but  also  what  measures  are  necessary  for  its  advancement.” 
It  is  next  pointed  out  that  the  right  to  contract  is  not  with¬ 
out  its  limitations.  Cases  are  cited  where  this  right  has 
been  restricted.  Applying  these  principles  to  the  case,  the 
conclusion  is  finally  reached. 

It  is  readily  seen  from  the  analysis  already  given  that  the 
limitation  placed  upon  the  right  of  contract  by  this  act  is  not 
arbitrary  and  oppressive,  but  entirely  just  and  reasonable. 
While  in  some  sense  qualifying  certain  contracts  of  the  em¬ 
ployer,  it  in  no  sense  works  a  great  hardship  upon  him.  It 
only  requires  that  in  certain  events  he  shall  pay  the  wages 
of  his  employee  in  money,  rather  than  in  something  less  de¬ 
sirable.  The  legislature,  as  it  thought,  found  the  employee 
at  a  disadvantage  in  this  respect,  and  by  this  enactment  under¬ 
took  to  place  him  and  the  employer  more  nearly  upon  an  equal¬ 
ity.  This  alone  commends  the  act,  and  entitles  it  to  a  place 
on  the  statute  book  as  a  valid  police  regulation. 

Besides  the  amelioration  of  the  employee’s  condition  in  the 
way  mentioned,  the  act  was  intended  and  is  well  calculated  to 
promote  the  public  peace  and  good  order,  and  to  lessen  the 
growing  tendency  to  strife,  violence,  and  even  bloodshed  in 
certain  departments  of  important  trade  and  business. 

Finally,  in  the  International  Text-Book  case  we  find  again 
the  court,  expressing  its  view  through  Justice  Dowling  of 
Indiana,  showing  its  appreciation  of  the  laborers’  side  of 
the  contention. 

A  large  proportion  of  the  persons  affected  by  these  statutes 
of  labor  are  dependent  upon  their  daily  or  weekly  wages  for 
the  maintenance  of  themselves  and  their  families.  Delay  of 
payment  or  loss  of  wages  results  in  deprivation  of  the  neces- 


268 


AMERICAN  COURTS  IN  LABOR  CASES 


saries  of  life,  suffering,  inability  to  meet  just  obligations  to 
others,  and,  in  many  cases,  may  make  the  wage-earner  a  charge 
upon  the  public.  The  situation  of  these  persons  renders  them 
peculiarly  liable  to  imposition  and  injustice  at  the  hands  of 
employers,  unscrupulous  trades-men,  and  others  who  are  will¬ 
ing  to  take  advantage  of  their  condition.  Where  future  wages 
may  be  assigned,  the  temptation  to  anticipate  their  payment, 
and  to  sacrifice  them  for  an  inadequate  consideration,  is  often 
very  great.  Such  assignments  would,  in  many  cases,  leave 
the  laborer  or  wage-earner  without  present  or  future  means  of 
support.  By  removing  the  strongest  incentive  to  faithful  ser¬ 
vice — the  expectation  of  pecuniary  reward  in  the  near  future 
— their  effect  would  be  alike  injurious  to  the  laborer  and  his 
employer.  It  is  clear  that  the  object  of  the  act  of  1899  was  the 
protection  of  wage-earners  from  oppression,  extortion,  or 
fraud  on  the  part  of  others,  and  from  the  consequences  of  their 
own  weakness,  folly,  or  improvidence.  We  cannot  say  that 
no  just  ground  existed  for  such  legislative  interference  for  so 
commendable  a  purpose. 

Turning  to  the  cases  that  adopt  the  opposite  view,  there 
is  Frorer  v.  People,  a  case  widely  cited  and  quoted  by  other 
courts.  It  was  the  opinion  of  the  Illinois  court  in  a  case  in 
which  was  tested  the  constitutionality  of  a  law  forbidding 
persons  or  corporations  while  in  the  business  of  mining  or 
manufacturing  to  be  interested  in  a  truck  store:  meaning  by 
“  truck  ”  “  the  payment  of  wages  otherwise  than  in  lawful 
money,  or  otherwise  than  to  the  full  amount  earned  by  the 
employee.' ’  This  law  the  court  held  to  be  unconstitutional 
and  Judge  Scholfield  wrote  an  elaborate  opinion  in  justifica¬ 
tion  of  the  conclusions  reached. 

The  first  objection  is  that 

while  the  prohibition  includes,  by  name,  only  the  person, 
company,  corporation,  or  association  engaged  in  “  mining  or 
manufacturing,”  it  includes  equally  within  its  effect  their  em- 


PAYMENT  OF  WAGES 


269 

ployees ;  for  the  employee  is  necessarily  denied  the  right  to 
contract  with  one  who  is  forbidden  by  the  law  to  possess,  for 
the  purpose  of  contracting  with  him,  the  articles  about  which 
he  wishes  to  contract.  It  would  therefore  have  added  nothing 
to  the  legal  meaning  of  this  section  if  it  had  expressly  pro¬ 
hibited  the  employees  from  contracting  with  their  employer 
for  the  purchase  of  the  property  in  which  it  is  thus  made  un¬ 
lawful  for  their  employer  to  have  any  ownership. 

A  further  objection  to  the  law  lies  in  the  fact  that  manu¬ 
facturers  and  miners  are  not  the  only  employers  of  labor  in 
the  state.  Thousands  are  employed  in  a  large  variety  of 
occupations.  In  all  these  other  industries  “  employers  and 
employees  are  unaffected  by  this  statute ;  and  such  employers 
may  therefore,  after  as  before  its  taking  effect,  engage  or 
be  interested  in  truck  stores.” 

This  leads  next  to  the  inquiry  whether  the  keeping  of  a 
truck  store  by  a  manufacturer  or  a  miner  is  “  in  substance 
and  in  principle  ”  different  from  the  keeping  of  one  by  any 
other  employer  of  labor.  The  answer  to  the  question  is 
clear. 

The  purpose  is,  manifestly,  the  same  in  each  case,  namely, 
the  sale  by  the  employer  to  the  employee  of  the  articles  desig¬ 
nated,  and  it  requires  precisely  the  same  elements  to  constitute 
a  contract — including  mental  capacity  in  the  parties  contract¬ 
ing,  and  freedom  from  fraud  and  over-reaching — in  the  one 
case  as  it  does  in  the  others.  The  operator  of  a  mine  and  the 
manufacturer  have  no  other  control  over  the  employee  than 
that  which  may  result  from  employing  him,  or  continuing  him 
in  employment,  or  refusing  to  do  so ;  and  every  other  employer 
of  labor  has  precisely  the  same  control  over  those  who  obtain 
or  wish  to  obtain  employment  with  him.  There  can  be  no 
reason  why  the  miner  or  the  operative  in  the  manufactory  will 
be  more  or  differently  influenced  by  his  hopes  and  fears  in 
these  respects  than  will  laborers  in  any  other  industries. 


270 


AMERICAN  COURTS  IN  LABOR  CASES 


Dealing  with  the  assertion  that  the  workers  affected  by 
the  law  were  more  than  ordinarily  dependent  upon  their  em¬ 
ployers,  the  court  asserts : 

It  cannot  truthfully  be  said  that  all  operators  in  mines  or 
manufactories  are  more  dependent  upon  their  employers  than 
all  laborers  in  any  other  branch  of  industry.  .  .  .  There  are 
varying  degrees  of  .  .  .  presumed  dependence.  .  .  .  And  so  it 
must  follow  that  any  difference  between  [mining  and  manu¬ 
facturing  and  other  branches  of  industry]  cannot  be  one  of 
principle,  but  must  be  purely  one  of  degree,  varying  with  the 
circumstances  of  particular  cases. 

It  is  recognized  in  this  opinion  that  the  legislature  may 
regulate  mining  and  manufacturing  in  matters  that  pertain 
to  them,  but  in  this  case  “  the  prohibition  of  the  statute  oper¬ 
ates  not  directly  upon  the  business  of  mining  and  manufac¬ 
turing,  but  upon  the  individual,  because  of  his  participation 
in  that  business.”  The  law  is  imposed  “  for  the  sole  pur¬ 
pose  of  imposing  disabilities  in  contracting  as  to  tools,  cloth¬ 
ing  and  food, — matters  about  which  all  laborers  must  con¬ 
tract,  and  as  to  which  all  laborers  in  every  other  branch  of 
industry  are  permitted  to  contract  with  their  employers  with¬ 
out  any  restriction.” 

Yet  another  consideration  that  was  of  apparent  moment 
in  the  mind  of  the  court  is  that 

The  privilege  or  liberty  to  engage  in  or  control  the  business 
of  keeping  and  selling  clothing,  provisions,  groceries,  tools, 
etc.,  to  employees  is  one  of  profit — of  presumptive  value ;  and 
thus,  by  the  effect  of  these  sections,  what  the  employers  in 
other  industries  may  do  for  their  pecuniary  gain  with  impunity, 
and  have  the  law  to  protect  and  enforce,  the  miner  and  manu¬ 
facturer,  under  precisely  the  same  circumstances  and  condi¬ 
tions,  are  prohibited  from  doing  for  their  pecuniary  gain.  The 
same  act,  in  substance  and  in  principle,  if  done  by  the  one  is 
lawful,  but  if  done  by  the  other  is  not  only  unlawful,  but  a 
misdemeanor,  punishable  by  fine. 


PAYMENT  OF  WAGES 


271 


The  Kansas  court,  in  State  v.  Haun,  took  a  position 
that  illustrates  the  same  view.  The  law  was  one  prohibit¬ 
ing  to  certain  corporations  the  right  of  payment  of  wages 
in  scrip.  To  Judge  Smith  who  wrote  the  opinion  this 
seemed  to  be  an  invasion  of  the  right  both  of  the  corpora¬ 
tions  concerned  and  of  the  workingmen.  On  the  first  of 
these  points  the  opinion  states : 

If  the  classification  attempted  by  this  act  is  a  constitutional 
one,  it  follows  that  the  legislature  might  have  made  the  law 
applicable  only  to  corporations  employing  married  men  or  per¬ 
sons  over  a  certain  age,  or  to  corporations  a  proportion  of 
whose  employees  were  women,  or  applied  to  any  other  arbi¬ 
trary  or  capricious  means  of  distinction. 

The  classification  must  be  based  on  a  reasonable  ground. 
Instead  of  this,  it  “  makes  a  distinction  between  corporations 
identically  alike  in  organization,  capital,  and  all  other  pow¬ 
ers  and  privileges  conferred  by  law.  It  is  arbitrary  and 
wanting  in  reason.  The  act  in  question  is  class  legislation 
of  the  most  pronounced  character.” 

On  the  second  point,  the  welfare  of  the  workingman,  the 
opinion  says : 

However  much  the  employed  might  profit  by  the  necessities 
of  the  employer  desiring  to  exchange  property  for  labor  at  a 
value  advantageous  to  the  former,  all  such  beneficial  agree¬ 
ments  are  prohibited  by  this  law.  In  short,  such  legislation 
infringes  upon  natural  rights  and  constitutional  grants  of  lib¬ 
erty.  It  treats  the  laborer  as  a  ward  of  the  government,  and 
discourages  the  employment  of  those  talents  which  lead  to 
success  in  the  fields  of  commercial  enterprise.  Persons  sui 
juris  need  no  guardians.  Those  who  seek  to  put  a  protector 
over  labor  reflect  upon  the  dignity  and  independence  of  the 
wage  earner,  and  deceive  him  by  the  promise  that  legislation 
can  cure  all  the  ills  of  which  he  may  complain.  Such  legis- 


272 


AMERICAN  COURTS  IN  LABOR  CASES 


lation  suggests  the  handiwork  of  the  politician  rather  than  the 
political  economist. 

A  similar  view  was  held  by  the  Missouri  court  as  ex¬ 
pressed  in  the  opinion  of  Judge  Black  in  State  v.  Loomis. 
The  statute  in  question  forbade  miners  and  manufacturers 
from  paying  wages  in  store  orders.  Here  again  the  court 
deals  with  the  problem  from  the  point  of  view  of  the  rights 
of  the  corporation,  and  of  the  individual  rights  of  the 
workingmen. 

There  can  be  no  doubt  but  the  legislature  may  regulate 
the  business  of  mining  and  manufacturing  so  as  to  secure  the 
health  and  safety  of  the  employees ;  but  that  is  not  the  scope 
of  the  two  sections  of  the  statute  now  in  question.  They  single 
out  those  persons  who  are  engaged  in  carrying  on  the  pur¬ 
suits  of  mining  and  manufacturing,  and  say  to  such  persons : 
“  You  cannot  contract  for  labor  payable  alone  in  goods,  wares, 
and  merchandise.  The  farmer,  the  merchant,  the  builder,  and 
the  numerous  contractors  employing  thousands  of  men  may 
make  such  contracts,  but  you  cannot.”  They  say  to  the  min¬ 
ing  and  manufacturing  employees:  “Though  of  full  age,  and 
competent  to  contract,  still  you  shall  not  have  the  power  to 
sell  your  labor  for  meat  and  clothing  alone,  as  others  may.” 
It  will  not  do  to  say  these  sections  simply  regulate  payment 
of  wages,  for  that  is  not  their  purpose.  They  undertake  to 
deny  to  the  persons  engaged  in  the  two  designated  pursuits 
the  right  to  make  and  enforce  the  most  ordinary,  every-day 
contracts — a  right  accorded  to  all  other  persons.  .  .  . 

Now,  it  may  be  that  instances  of  oppression  have  occurred, 
and  will  occur,  on  the  part  of  some  mine  owners  and  manu¬ 
facturers,  but  do  they  not  occur  quite  as  frequently  in  other 
fields  of  labor?  Conceding  that  such  instances  may  and  do 
occur,  still  that  furnishes  no  reasonable  basis  for  depriving  all 
persons  engaged  in  the  two  lawful  and  necessary  pursuits  of 
the  right  to  make  and  enforce  every-day  contracts.  Liberty, 
as  we  have  seen,  includes  the  right  to  contract  as  others  may, 


PAYMENT  OF  W AGES 


273 


and  to  take  that  right  away  from  a  class  of  persons  following 
lawful  pursuits  is  simply  depriving  such  persons  of  a  time- 
honored  right  which  the  constitution  undertakes  to  secure  to 
every  citizen. 

As  opposing  this  view  of  Judge  Black,  Judge  Barclay 
wrote  a  dissenting  opinion,  presenting  the  following  view: 

The  lawmaker  necessarily  deals  with  conditions  as  he  finds 
them.  If  he  observes,  and  wishes  to  abate,  some  fraudulent 
practice  or  abuse  of  power  prevailing  only  in  some  one  line 
of  business,  the  fact  that,  in  legislating  to  correct  it,  he  does 
not  also  include  in  his  remedy  all  other  phases  of  human 
affairs,  can  furnish  no  reason  for  stigmatizing  his  remedy  as 
no  law  at  all.  If  an  act  reaching  only  mining  and  manufactur¬ 
ing  concerns  is,  on  that  account,  not  “  due  process  of  law,” 
what  must  be  held  of  statutes  establishing  special  rules  of  lia¬ 
bility,  or  business  regulations,  applicable  to  railroads  only,  to 
warehousemen,  pawnbrokers,  auctioneers,  millers,  and  the 
many  other  classes  of  persons  whose  affairs  form  topics  of 
treatment  in  separate  laws?  Are  all  such  statutes  void,  be¬ 
cause  each  relates  to  persons  engaged  only  in  the  particular 
class  of  business  named  in  it?  Probably  they  would  not  be 
so  held.  Some  of  them  are  acted  on  and  enforced  almost  daily. 
Yet  if  they  are  valid,  what,  let  me  ask,  is  there  so  excep¬ 
tional  about  the  truck  system  that  precludes  legislation  appli¬ 
cable  to  those  lines  of  business  in  which  it  prevails?  ...  Its 
plain  purpose  is  to  put  some  restraint  upon  that  sort  of  free¬ 
dom  which  would  permit  the  employer  to  contract  for  labor, 
payable  in  goods,  and  then  place  his  own  prices  upon  the 
goods  delivered  in  payment.  ...  It  does  not  differ  in  prin¬ 
ciple  from  governmental  regulations  in  the  form  of  laws  by 
which  a  person  who  has  contracted  to  receive  a  yard  of  cloth 
or  a  bushel  of  com  is  protected  against  the  necessity  of  ac¬ 
cepting  such  a  short  yard  or  light  bushel  as  the  seller  may 
choose  to  impose  upon  him. 

Two  other  brief  extracts  may  be  added  in  closing  this 
section. 


274 


AMERICAN  COURTS  IN  LABOR  CASES 


More  than  this,  [the  law]  is  an  insulting  attempt  to  put  the 
laborer  under  a  legislative  tutelage,  which  is  not  only  degrad¬ 
ing  to  his  manhood,  but  subversive  of  his  rights  as  a  citizen 
of  the  United  States.  He  may  sell  his  labor  for  what  he  thinks 
best,  whether  money  or  goods,  just  as  his  employer  may  sell 
his  iron  or  coal;  and  any  and  every  law  that  proposes  to  pre¬ 
vent  him  from  so  doing  is  an  infringement  of  his  constitu¬ 
tional  privileges,  and  consequently  vicious  and  void.  (God- 
charles  v.  Wigeman.) 

The  patrimony  of  the  poor  man  lies  in  the  strength  and 
dexterity  of  his  own  hands ;  and  to  hinder  him  from  employing 
these  in  what  manner  he  may  think  proper,  without  injury  to 
his  neighbor,  is  a  plain  violation  of  this  most  sacred  property. 
It  is  equally  an  encroachment  both  upon  the  just  liberty  and 
rights  of  the  workman  and  his  employer,  or  those  who  might 
be  disposed  to  employ  him,  for  the  legislature  to  interfere 
with  the  freedom  of  contract  between  them.  .  .  .  The  enjoy¬ 
ment  or  deprivation  of  these  rights  and  privileges  constitutes 
the  essential  distinction  between  freedom  and  slavery,  between 
liberty  and  oppression.  (State  v.  Goodwill.) 


CHAPTER  XV 


Payment  of  Wages — Screening  Coal 

One  other  line  of  legislation  relating  to  wages  has  led  to 
court  opinions  that  are  of  interest.  It  is  with  reference  to 
screening  coal  before  weighing  it  as  a  basis  for  determining 
wages.  The  matter  has  been  an  important  ground  of  con¬ 
tention  between  the  employer  and  employee  and  in  several 
states  legislation  has  been  enacted  forbidding  the  screening 
of  the  coal  before  weighing  where  payment  was  made  by 
weight.  This  legislation  has  found  its  way  to  the  courts 
and  several  lengthy  opinions  have  been  handed  down.  They 
display  the  same  contrast  of  views  brought  out  in  the  last 
chapter.  Yet  the  differences  are  such  that  a  discussion  of 
them  will  add  to  the  understanding  of  the  court’s  attitude. 

The  West  Virginia  court  in  Peel  Splint  Co.  v.  State 
takes  the  view,  first,  that  doubt  of  the  validity  of  a  law  is 
to  be  dissolved  in  favor  of  the  legislative  authority;  and 
second,  that  the  law  deals  with  corporations.  These  cor¬ 
porations,  says  the  opinion,  enjoy  unusual  and  extraordinary 
privileges  which  enabled  them  “  to  surround  themselves  with 
a  vast  retinue  of  laborers,,  who  need  to  be  protected  against 
all  fraudulent  or  suspicious  devices  in  the  weighing  of  coal 
or  in  the  payment  of  labor,”  and  further  that  these  corpor¬ 
ations  are  licensees  under  the  general  supervision  of  the 
state.  Following  this,  the  opinion  seeks  “  still  higher 
ground  ”  for  its  decision. 

We  do  not  base  this  decision  so  much  upon  the  ground  that 
the  business  is  affected  by  the  public  use,  but  upon  the  still 

275 


AMERICAN  COURTS  IN  LABOR  CASES 


276 

higher  ground,  that  the  public  tranquillity,  and  the  good  and 
safety  of  society,  demand,  where  the  number  of  employees  is 
such  that  specific  contracts  with  each  laborer  would  be  im¬ 
probable,  if  not  impossible,  that  in  general  contracts  justice 
shall  prevail  as  between  operator  and  miner;  and,  in  the  com¬ 
pany’s  dealing  with  the  multitude  of  laborers  with  which  the 
state  has  by  special  legislation  enabled  the  owners  and  oper¬ 
ators  to  surround  themselves,  that  all  opportunities  for  fraud 
shall  be  removed.  The  state  is  frequently  called  upon  to  sup¬ 
press  strikes,  to  discountenance  labor  conspiracies,  to  denounce 
boycotting  as  injurious  to  trade  and  commerce;  and  it  cannot 
be  possible  that  the  same  police  power  may  not  be  invoked  to 
protect  the  laborer  from  being  made  the  victim  of  the  compul¬ 
sory  power  of  that  artificial  combination  of  capital  which 
special  state  legislation  has  originated  and  rendered  possible. 
It  is  a  fact  worthy  of  consideration,  and  one  of  such  historical 
notoriety  that  the  court  may  recognize  it  judicially,  that  every 
disturbance  of  the  peace  of  any  magnitude  in  this  state  since 
the  civil  war  has  been  evolved  from  the  disturbed  relations 
between  powerful  corporations  and  their  servants  or  em¬ 
ployees.  It  cannot  be  possible  that  the  state  has  no  police 
power  adequate  to  the  protection  of  society  against  the  recur¬ 
rence  of  such  disturbances,  which  threaten  to  shake  civil  order 
to  its  very  foundations.  Collisions  between  the  capitalist  and 
the  workingman  endanger  the  safety  of  the  state,  stay  the 
wheels  of  commerce,  discourage  manufacturing  enterprises,  de¬ 
stroy  public  confidence,  and  at  times  throw  an  idle  population 
upon  the  bosom  of  the  community.  Surely  the  hands  of  the 
legislature  cannot  be  so  restricted  as  to  prohibit  the  passage 
of  laws  directly  intended  to  prevent  and  forestall  such  col¬ 
lisions.  .  .  . 

Down  through  the  centuries,  hand  in  hand,  and  consolidated 
into  one  police  regulation,  have  come  these  conspiracy  laws  to 
protect  capital,  and  these  truck  acts  to  protect  labor,  and  both 
to  protect  society ;  and  are  we  now  to  be  told  that  the  effect  of 
adopting  our  free  American  constitution  is  to  leave  in  full 
vigor  the  power  to  protect  capital,  but  to  destroy  the  con- 


PAYMENT  OF  WAGES— SCREENING  COAL 


2  77 


comitant  and  correlative  power  to  protect  labor?  The  two 
powers,  associated  in  their  exercise  for  centuries,  have  not 
been  divorced  by  American  institutions.  Such  an  idea  is  not 
to  be  entertained  for  a  moment. 

The  Arkansas  court,  in  McLean  v.  State,  disposes  of  the 
essential  point  in  the  case  in  a  brief  statement.  “  This  legis¬ 
lation,”  it  concludes,  “  is  clearly  within  the  scope  of  the 
police  power.  The  manifest  purpose  of  the  stature  is  to 
prevent  those  who  operate  coal  mines  from  perpetrating 
fraud  upon  laborers  whom  they  have  employed  to  mine  coal 
by  the  quantity.”  This  case  was  appealed  to  the  supreme 
court  of  the  United  States,  and  a  lengthy  opinion  was  written 
by  Justice  Day.  So  far  as  freedom  of  contract  is  concerned, 
the  court  recognizes  the  principle.  It  has  been  upheld  in 
many  cases.  Yet,  “  in  many  cases  in  this  court  the  right  of 
freedom  of  contract  has  been  held  not  to  be  unlimited  in  its 
nature.”  Limitations  in  favor  of  public  health,  safety  and 
welfare,  “  may  be  valid,  notwithstanding  they  have  the  ef¬ 
fect  to  curtail  or  limit  freedom  of  contract.”  After  citing 
several  cases  in  which  the  right  has  been  restricted  the  con¬ 
clusion  is  stated.  “  It  is,  then,  the  established  doctrine  of 
this  court  that  the  liberty  of  contract  is  not  universal,  and 
is  subject  to  restrictions  passed  by  the  legislative  branch  of 
the  government  in  the  exercise  of  its  power  to  protect  the 
safety,  health,  and  welfare  of  the  people.”  But  likewise  the 
police  power  is  not  unlimited,  it  “  is  subject  to  judicial  re¬ 
view  ;  and  when  exerted  in  an  arbitrary  or  oppressive  man¬ 
ner,  such  laws  may  be  annulled  as  violative  of  rights  pro¬ 
tected  by  the  constitution.”  The  principle  underlying  this 
adjustment  of  power  between  the  legislature  and  the  judicial 
power  is  declared  to  be  well  settled.  It  is  stated  to  be: 
“  The  legislature,  being  familiar  with  local  conditions,  is, 
primarily,  the  judge  of  the  necessity  of  such  enactments,” 
and  the  fact  that  the  court  may  not  entertain  the  same  view 


AMERICAN  COURTS  IN  LABOR  CASES 


278 

as  to  the  necessity,  “  affords  no  ground  for  judicial  inter¬ 
ference,  unless  the  act  in  question  is  unmistakably  and  pal¬ 
pably  in  excess  of  legislative  power/’  These  principles  are 
then  applied  to  the  case  at  bar. 

After  an  examination  of  opinions  from  the  several  state 
courts,  of  the  evidence  of  the  Industrial  Commission  as  pub¬ 
lished  in  its  report,  and  of  the  conditions  presented  in  evi¬ 
dence  in  the  case,  the  court  concludes :  “  It  is  not  for  us  to 
say  whether  these  are  actual  conditions.  It  is  sufficient  to 
say  that  it  was  a  situation  brought  to  the  attention  of  the 
legislature,  concerning  which  it  was  entitled  to  judge  and 
act  for  itself  in  the  exercise  of  its  lawful  power  to  pass  re¬ 
medial  legislation.” 

In  the  same  year  that  the  first  case  mentioned  above  was 
brought  before  the  West  Virginia  court,  the  Illinois  court 
considered  Ramsey  v.  People.  That  court  had  just  handed 
down  its  opinion  in  Frorer  v.  People  in  which  it  had  held 
that  the  prohibition  of  miners  and  manufacturers  from  keep¬ 
ing  truck  stores  was  in  violation  of  the  constitutional  right 
of  freedom  of  contract.  In  Ramsey  v.  People  the  court 
declares  that  the  case  before  it  dealing  with  the  weighing  of 
coal  before  screening  involves  “  in  the  main,  the  same  con¬ 
stitutional  principles.”  Because  of  the  fullness  with  which 
the  earlier  case  had  been  considered,  “  we  need  do  little 
more  than  refer  to  what  is  said  ”  in  that  opinion.  The 
statute 

attempts  to  take  from  both  employer  and  employee,  engaged 
in  the  mining  business,  the  right  and  power  of  fixing  by  con¬ 
tract  the  manner  in  which  such  wages  are  to  be  ascertained. 
.  .  .  There  is  nothing  in  the  business  of  coal  mining  which 
renders  either  the  employer  or  employee  less  capable  of  con¬ 
tracting  in  respect  to  wages  than  in  any  of  the  other  numer¬ 
ous  branches  of  business  in  which  laborers  are  employed 
under  analogous  conditions.  There  is  no  difference,  at  least 


PAYMENT  OF  WAGES— SCREENING  COAL 


279 


in  kind,  so  far  as  this  matter  is  concerned,  between  coal  min¬ 
ing,  on  the  one  hand,  and  other  varieties  of  mining,  quarrying 
stone,  grading  and  constructing  railroads,  and  their  operation 
when  constructed,  manufacturing  in  all  its  departments,  the 
construction  of  buildings,  agriculture,  commerce,  domestic 
service,  and  an  almost  infinite  variety  of  other  avocations  re¬ 
quiring  the  employment  of  laborers,  on  the  other  hand.  Upon 
what  principle,  then,  can  those  engaged  in  coal  mining  be 
singled  out,  and  subjected  to  restrictions  of  their  power  to  con¬ 
tract  as  to  wages,  while  those  engaged  in  all  these  other  classes 
of  business  are  left  entirely  free  to  contract  as  they  see  fit? 
We  think  the  attempt  of  the  legislature  to  impose  such  restric¬ 
tions  is  clearly  repugnant  to  the  constitutional  limitation  above 
referred  to,  and  therefore  void. 

Although  the  court  in  Peel  Splint  Coal  Co.  v.  State 
had  decided  unanimously  in  favor  of  the  law,  a  re-hearing 
was  allowed.  The  second  time  the  court  was  divided  in  its 
view,  two  still  holding  to  the  former  opinion  and  two  dis¬ 
senting.  The  views  set  forth  in  this  dissenting  opinion, 
held  by  half  of  the  court,  are  important,  though  they  did 
not  prevail  in  determining  the  decision  of  the  case.  Ob¬ 
jection  to  the  law  is  based  upon  an  analysis  of  the  mining- 
work  which  may  be  summarized  as  follows.  The  coal  in 
the  mine  is  the  property  of  the  operator;  and  it  is  imma¬ 
terial  whether  the  operator  be  a  corporation  or  a  single  in¬ 
dividual.  The  object  is  to  obtain  from  the  mine  merchant¬ 
able  coal  in  as  large  quantities  as  possible.  In  mining  it  is 
necessary  to  have  some  slack,  but  the  greater  the  skill  of  the 
miner  the  less  percentage  of  slack  there  will  be.  The  weigh¬ 
ing  of  coal  after  it  is  screened  is  a  truer  test  of  the  amount 
of  coal  that  has  been  mined.  Otherwise  the  unskilled 
miner  who  loads  most  slack  upon  his  car  will  receive  the 
larger  pay.  The  question  is  then  asked :  Is  not  screening 
before  weighing  the 


28o 


AMERICAN  COURTS  IN  LABOR  CASES 


proper  method  of  giving  to  the  skilled  miner  what  he  is  en¬ 
titled  to  by  reason  of  years  of  experience,  instead  of  placing 
him  on  a  par  with  the  beginner,  or  really  below  the  beginner, 
who  is  able  to  produce  a  small  percentage  of  merchantable 
coal,  and  sends  out  the  residue  in  the  shape  of  slack? 

Further  this  dissent  points  out  that  with  a  less  amount  of 
merchantable  coal,  a  less  wage  must  be  paid.  The  “  in¬ 
evitable  result  ”  of  the  law  must  be  to  depress  wages,  to  take 
“  bread  from  the  family  of  the  skilled  miner,  and  give  it  to 
the  family  of  the  careless  and  unskilled  one,”  to  cause 

the  product  of  the  mine  to  be  received  in  such  a  condition  that 
a  large  percentage  thereof  is  worthless  to  him,  and  to  that 
extent  the  coal  property  for  which  he  has  paid  his  money  is 
taken,  from  him  without  compensation.  .  .  .  What  more  com¬ 
plete  confiscation  of  the  operator’s  property  could  possibly  be 
enforced  than  to  have  a  large  percentage  of  his  coal  mined 
and  put  out  in  a  condition  that  would  be  utterly  worthless  to 
him,  and  in  addition  to  that  to  be  compelled  to  pay  the  miner 
for  his  labor  in  producing  it  in  that  condition? 

Turning  from  the  property  consideration  the  opinion 
takes  up  the  question  of  contract. 

I  fail  to  perceive  in  what  manner  the  public  is  interested  in 
the  private  contract  made  between  the  coal  operator  and  his 
employees,  as  to  the  time  when  such  employee  shall  have  the 
product  of  his  labor  weighed  and  paid  for.  The  labor  of  the 
employee  is  his  own  property,  and  he  has  a  perfect  right  to  fix 
a  price  upon  it,  let  it  be  high  or  low,  and  the  public  has  no 
right  to  say,  “Why  do  you  so?”  Neither  is  the  public  wel¬ 
fare  in  any  manner  affected  by  the  terms  of  the  contract,  any 
more  than  it  is  in  that  of  the  man  who  works  by  the  day  on 
the  farm. 


CHAPTER  XVI 


Hours  of  Labor — Mines  and  Smelters 

The  validity  of  laws  regulating  the  hours  of  labor  of 
men  in  mines  and  smelters  has  been  tested  in  two  states  in 
cases  that  led  to  the  writing  of  elaborate  opinions.  One 
of  these  cases  was  appealed  to  the  United  States  supreme 
court  by  which  a  third  opinion  was  handed  down.  These 
three  opinions  afford  an  excellent  opportunity  to  study  the 
two  opposing  views. 

The  first  of  these  cases  came  before  the  supreme  court  of 
Utah  as  Holden  v.  Hardy  and  State  v.  Holden,  one  dealing 
with  mines  and  the  other  with  smelters.  The  appeal  of  the 
former  case  to  the  United  States  supreme  court  in  Holden 
v.  Hardy  led  to  the  opinion  from  that  court.  The  third 
opinion  was  one  handed  down  by  the  supreme  court  of  Col¬ 
orado,  In  re  Morgan.  These  opinions  were  all  written  within 
three  years  and  the  conditions  in  the  neighboring  states  were 
such  as  to  make  the  cases  very  similar.  There  was,  how¬ 
ever,  one  difference  that  must  not  be  passed  by  unnoticed. 
The  constitution  of  Utah  contained  a  clause  not  found  in 
the  constitution  of  Colorado  which  required  the  legislature 
to  “  pass  laws  to  provide  for  the  health  and  safety  of  the 
employees  in  factories,  smelters  and  mines.”  It  does  not 
appear  from  the  reasoning  in  the  opinions,  however,  that 
this  difference  was  the  real  cause  for  the  opposite  conclusions 
reached. 

The  opinion  of  the  Utah  court  deals  first  with  the  relation 
of  the  provisions  of  the  law  in  question  to  the  clause  of  the 

281 


2§2 


AMERICAN  COURTS  IN  LABOR  CASES 


constitution  just  referred  to.  Any  doubt  that  the  statute 
does  not  come  within  the  constitutional  provision  must  be 
dissolved  in  favor  of  the  legislature.  “  The  court  must  be 
able  to  see  clearly  that  the  law  was  not  so  connected  be¬ 
fore  holding  it  void  for  that  reason.”  The  judgment  of 
the  legislature  as  to  the  necessity  for  the  law  must  not  be 
lightly  set  aside  by  the  court.  In  this  spirit  the  court  raises 
the  question :  Is  the  statute  limiting  the  period  of  employment 
of  laboring  men  in  mines  to  eight  hours  a  day  calculated  to 
promote  the  health  of  such  laboring  men  ?  After  stating  the 
difference  in  conditions  of  labor  the  court  finally  answers 
its  own  question.  “  The  fact  must  be  conceded  that  the 
breathing  of  pure  air  is  wholesome,  and  the  breathing  of 
impure  air  is  unwholesome.  We  cannot  say  that  this  law 
.  .  .  is  not  calculated  to  promote  health,  that  it  is  not 
adapted  to  the  protection  of  the  health  of  the  class  of  men 
who  work  in  underground  mines.” 

But  the  opinion  is  made  to  rest  on  broader  grounds  than 
the  specific  clause  of  the  state  constitution.  The  provision 
“  does  not  prohibit  the  legislature  from  enacting  other  laws 
affecting  such  classes,  to  promote  the  general  welfare.”  To 
the  contention  that  this  is  class  legislation  the  court  replies : 

But  some  pursuits  are  attended  with  peculiar  hazards  and 
perils,  the  injurious  consequences  from  which  may  be  largely 
prevented  by  precautionary  means,  and  laws  may  be  passed 
calculated  to  protect  the  classes  of  people  engaged  in  such 
pursuits.  It  is  not  necessary  to  extend  the  protection  to  per¬ 
sons  engaged  in  other  pursuits  not  attended  with  similar  dan¬ 
gers.  To  them  the  law  would  be  inappropriate  and  idle.  So, 
if  underground  mining  is  attended  with  dangers  peculiar  to 
it,  laws  adapted  to  the  protection  of  such  miners  from  such 
danger  should  be  confined  to  that  class  of  mining,  and  should 
not  include  other  employments  not  subject  to  them.  And  if 
men  engaged  in  underground  mining  are  liable  to  be  injured 


HOURS  OF  LABOR— MINES  AND  SMELTERS  283 

in  their  health,  or  otherwise,  by  too  many  hours’  labor  each 
day,  a  law  to  protect  them  should  be  aimed  at  that  peculiar 
wrong.  In  this  way,  laws  are  enacted  to  protect  people  from 
perils  from  the  operation  of  railroads,  by  requiring  bells  to 
be  rung  and  whistles  sounded  at  road  crossings,  and  the  slack¬ 
ing  of  the  speed  of  trains  in  cities.  So,  the  sale  of  liquor  is 
regulated  to  lessen  the  evils  of  the  liquor  traffic,  and  other 
classes  of  business  are  regulated  by  appropriate  laws.  In  this 
way,  laws  are  designed  and  adapted  to  the  peculiarities  attend¬ 
ing  each  class  of  business.  By  such  laws,  different  classes  of 
people  are  protected  by  various  acts  and  provisions.  In  this 
way,  various  classes  of  business  are  regulated,  and  the  people 
protected,  by  appropriate  laws,  from  dangers  and  evils  that 
beset  them ;  safety  is  secured,  health  preserved,  and  the  hap¬ 
piness  and  welfare  of  humanity  promoted.  All  persons  en¬ 
gaged  in  business  that  may  be  attended  with  peculiar  injury 
to  health  or  otherwise,  if  not  regulated  and  controlled,  should 
be  subject  to  the  same  law;  otherwise,  the  law  should  be 
adapted  to  the  special  circumstances.  The  purpose  of  such 
laws  is  not  advantage  to  any  person  or  any  class  of  persons, 
or  disadvantage  to  any  other  person  or  class  of  persons.  Nec¬ 
essary  and  just  protection  is  the  sole  object.  [Quoting  the 
United  States  supreme  court]  :  The  specific  regulations  for  one 
kind  of  business,  which  may  be  necessary  for  the  protection 
of  the  public,  can  never  be  the  just  ground  of  complaint  be¬ 
cause  like  restrictions  are  not  imposed  upon  other  business  of 
a  different  kind.  The  discriminations  which  are  open  to  ob¬ 
jection  are  those  where  persons  engaged  in  the  same  business 
are  subject  to  different  restrictions,  or  are  held  entitled  to 
different  privileges  under  the  same  conditions.  It  is  only  then 
that  the  discriminations  can  be  said  to  impair  that  equal  right 
which  all  can  claim  in  the  enforcement  of  the  laws. 

As  a  further  justification  of  the  law,  the  court  intro¬ 
duces  the  police  power.  This  power  exists  “  to  the  pro¬ 
tection  of  the  lives,  health,  and  property  of  the  citizens,  and 
to  the  preservation  of  good  order  and  the  public  good.” 


AMERICAN  COURTS  IN  LABOR  CASES 


284 

These  objects  “  are  to  be  attained  and  provided  for  by  such 
appropriate  means  as  the  legislative  discretion  may  devise.” 

In  State  v.  Holden  the  provision  dealing  with  smelters 
was  tested.  The  court  pointed  out  that  while  conditions  in 
mines  were  different  than  in  smelters,  yet  it  is  true  that 

poisonous  gases,  dust,  and  impalpable  substances  arise  and 
float  in  the  air  in  stamp  mills,  smelters,  and  other  works  in 
which  ores  containing  metals,  combined  with  arsenic  or  other 
poisonous  elements  or  agencies,  are  treated,  reduced,  and  re¬ 
fined;  and  there  can  be  no  doubt  that  prolonged  effort  day 
after  day,  subject  to  such  conditions  and  agencies,  will  produce 
morbid,  noxious,  and  often  deadly  effects  in  the  human  sys¬ 
tem.  Some  organisms  and  systems  will  resist  and  endure 
such  conditions  and  effects  longer  than  others.  It  may  be  said 
that  labor  in  such  conditions  must  be  performed.  Granted 
that,  the  period  of  labor  each  day  should  be  of  a  reasonable 
length.  Twelve  hours  per  day  would  be  less  injurious  than 
fourteen,  ten  than  twelve,  and  eight  than  ten.  The  legislature 
has  named  eight.  Such  a  period  was  deemed  reasonable. 

While  the  state  constitution  makes  mandatory  legislation 
to  protect  the  health  of  such  workmen,  yet  we  do  not  “  wish 
to  be  understood  as  intimating  that  the  power  to  pass  the  law 
does  not  exist  in  the  police  powers  of  the  state.  The  au¬ 
thority  .  .  .  undoubtedly  is  found  in  such  police  powers.” 

The  United  States  supreme  court  endorsed  fully  the  views 
and  conclusions  of  the  Utah  court,  as  shown  by  the  fact  that 
a  large  portion  of  these  views  is  directly  incorporated  in 
its  opinion.  In  addition  to  the  long  quotations  from  the 
Utah  court,  Justice  Brown  adds  other  reasons  in  support 
of  the  law. 

But  if  it  be  within  the  power  of  the  legislature  to  adopt  such 
means  for  the  protection  of  the  lives  of  its  citizens,  it  is  dif¬ 
ficult  to  see  why  precautions  may  not  also  be  adopted  for  the 


HOURS  OF  LABOR-MINES  AND  SMELTERS 


285 

protection  of  their  health  and  morals.  It  is  as  much  for  the 
interest  of  the  state  that  the  public  health  should  be  preserved 
as  that  life  should  be  made  secure.  .  .  . 

Upon  the  principles  above  stated,  we  think  the  act  in  ques¬ 
tion  may  be  sustained  as  a  valid  exercise  of  the  police  power 
of  the  state.  .  .  . 

The  legislature  has  also  recognized  the  fact,  which  the  ex¬ 
perience  of  legislators  in  many  states  has  corroborated,  that 
the  proprietors  of  these  establishments  and  their  operatives 
do  not  stand  upon  an  equality,  and  that  their  interests  are,  to 
a  certain  extent,  conflicting.  The  former  naturally  desire  to 
obtain  as  much  labor  as  possible  from  their  employees,  while 
the  latter  are  often  induced  by  the  fear  of  discharge  to  con¬ 
form  to  regulations  which  their  judgment,  fairly  exercised, 
would  pronounce  to  be  detrimental  to  their  health  or  strength. 
In  other  words,  the  proprietors  lay  down  the  rules  and  the 
laborers  are  practically  constrained  to  obey  them.  In  such 
cases  self-interest  is  often  an  unsafe  guide,  and  the  legislature 
may  properly  interpose  its  authority. 

The  law  enacted  in  Colorado  carried  practically  the  same 
provision,  limiting  the  hours  of  work  in  mines  and  smelters 
to  eight  a  day.  The  question  before  the  court  as  stated  in 
the  opinion  was  “  does  the  act  .  .  .  violate  any  constitu¬ 
tional  provision?”  At  the  outset  it  is  made  clear  that 
“  decisions  of  other  jurisdictions,  defining  the  limits  of 
legislation  under  their  constitutions,”  are  not  binding  in 
Colorado.  “  We  have  no  constitutional  provision,”  states 
the  opinion,  “  which  authorizes  the  legislature  to  single  out 
workingmen  in  underground  mines  and  smelters,  and  im¬ 
pose  upon  them  restrictions  as  to  the  number  of  hours  they 
shall  work  at  these  industries,  from  which  workingmen  in 
all  other  departments  of  industry  are  exempt.”  The  atti¬ 
tude  is  taken  that  since  the  constitution  does  not  prescribe 
such  work  the  legislature  is  not  warranted  in  entering  upon 
it,  the  principle  being  that,  “  when  authority  to  do  a  par- 


286 


AMERICAN  COURTS  IN  LABOR  CASES 


ticular  thing  is  given  [the  regulation  of  mines]  and  the  mode 
of  doing  it  [ventilation,  escape  shafts  and  other  safety  de¬ 
vices]  is  prescribed,  all  other  modes  are  excluded." 

The  real  argument,  however,  is  on  other  lines,  the  rea¬ 
son  given  for  the  change  being  that  “  we  prefer  to  put  our 
decision  upon  impregnable  grounds.”  These  “  impregnable 
grounds”  are  stated  at  considerable  length.  The  extracts 
that  follow  will  indicate  the  line  of  argument. 

The  act  is  equally  obnoxious  to  the  provisions  of  our  bill 
of  rights,  set  out  in  the  statement,  which  guarantee  to  all  per¬ 
sons  their  natural  and  inalienable  right  to  personal  liberty, 
and  the  right  of  acquiring,  possessing,  and  protecting  prop¬ 
erty.  Liberty  means  something  more  than  mere  freedom  from 
physical  restraint.  It  includes  the  privilege  of  choosing  any 
lawful  occupation  for  the  exercise  of  one’s  physical  and 
mental  faculties  which  is  not  injurious  to  others.  The  right 
to  acquire  and  possess  property  includes  the  right  to  contract 
for  one’s  labor.  The  latter  is  essentially  a  property  right. 
.  .  .  That  this  act  infringes  both  the  right  to  enjoy  liberty 
and  to  acquire  and  possess  property  seems  too  clear  for  ar¬ 
gument. 

To  the  contention  that  the  law  comes  within  the  police 
power  of  the  state,  the  opinion  replies : 

Following  the  authorities,  we  may  say  that  it  [the  police 
power]  extends  to  the  protection  of  the  public  health.  It  is 
upon  the  specific  ground  that  limiting  the  time  a  workingman 
may  labor  in  a  smelter  to  eight  hours  a  day  conduces  to  and 
preserves  the  health  of  the  laborer  himself  that  this  act  is 
sought  to  be  upheld. 

The  court’s  view  of  the  scope  of  this  power  is  then  stated 
more  at  length.  Authorities  are  cited  to  show  that  the 
real  scope  of  the  power  is  not  so  broad.  Citations  in  sup¬ 
port  of  the  broader  scope  of  the  police  power,  the  court  in- 


HOURS  OF  LABOR— MINES  AND  SMELTERS  287 


sists,  come  from  “  unguarded  expressions  of  text  writers  or 
in  judicial  opinions,”  but  they  are  “  contrary  to  every  well- 
considered  decision.” 

To  show  that  the  provisions  of  the  law  do  not  come  with¬ 
in  its  interpretation  of  the  police  power,  the  following 
analysis  is  presented : 

Its  supporters  do  not  claim  that  its  real  and  primary  object 
is  to  protect  the  public  health,  or  the  health  of  that  portion 
of  the  community  in  the  immediate  vicinity,  or  affected  by  the 
operation,  of  smelters.  If  that  purpose  is  present  at  all,  it 
is  only  so  inferentially,  and  the  means  employed  to  secure  it 
are  neither  adequate  nor  appropriate.  The  smelting  of  ores 
is  a  continuous  process,  night  and  day,  the  year  through.  It 
is  not  claimed  that  the  business  is  injurious  to  public  health. 
It  would  be  absurd  to  argue  that,  while  the  process  itself  is 
continuous,  limiting  the  hours  of  those  laboring  in  a  smelter 
in  any  wise  conduces  to  preserve  the  health  of  any  portion  of 
the  public.  That  is  to  say,  three  shifts  of  laborers,  working 
eight  hours  each,  would  affect  the  public  health  to  the  same 
extent,  if  at  all,  as  would  two  shifts  at  twelve  hours  each.  It 
is  not  contended  that  the  business  of  smelting  is  unlawful; 
nor  is  it  claimed  that  the  act  was  passed  to  prevent  employers 
from  perpetrating  fraud  upon  employees,  or  to  protect  the 
latter  from  trespasses.  Indeed,  the  only  object  that  can  ration¬ 
ally  be  claimed  for  it  is  the  preservation  of  the  health  of  those 
working  in  the  smelters.  Were  the  object  of  the  act  to  protect 
the  public  health,  and  its  provisions  reasonably  appropriate  to 
that  end,  it  might  be  sustained ;  for  in  such  a  case  even  the 
constitutional  right  of  contract  may  be  reasonably  limited. 
But  the  act  before  us  is  not  of  that  character.  In  selecting  a 
subject  for  the  exercise  of  the  police  power,  the  legislature 
must  keep  within  its  true  scope.  The  reason  for  the  existence 
of  the  power  rests  upon  the  theory  that  one  must  so  use  his 
own  as  not  to  injure  others,  and  so  as  not  to  interfere  with  or 
injure  the  public  health,  safety,  morals,  or  general  welfare. 
How  can  one  be  said  injuriously  to  affect  others,  or  interfere 


288 


AMERICAN  COURTS  IN  LABOR  CASES 


with  these  great  objects,  by  doing  an  act  which  confessedly 
visits  its  consequences  on  himself  alone?  And  how  can  an 
alleged  law,  that  purports  to  be  the  result  of  an  exercise  of 
the  police  power,  be  such  in  reality,  when  it  has  for  its  only 
object,  not  the  protection  of  others,  or  the  public  health,  safety, 
morals,  or  general  welfare,  but  the  welfare  of  him  whose  act 
is  prohibited,  when,  if  committed,  it  will  injure  him  who  com¬ 
mits  it,  and  him  only?  .  .  . 

In  this  we  must  not  be  understood  as  limiting  the  legisla¬ 
ture,  where  the  facts  justify  apparent  discrimination,  in  pass¬ 
ing  health  laws  affecting  only  certain  classes.  .  .  .  What  we 
mean  to  decide  is  that  in  a  purely  private,  lawful  business,  in 
which  no  special  privilege  or  license  has  been  granted  by  the 
state,  and  the  carrying  on  of  which  is  attended  by  no  injury 
to  the  general  public,  it  is  beyond  the  power  of  the  legislature, 
under  the  guise  of  the  police  power,  to  prohibit  an  adult  man 
who  desires  to  work  thereat  from  working  more  than  eight 
hours  a  day,  on  the  ground  that  working  longer  may,  or  prob¬ 
ably  will,  injure  his  own  health.  .  .  . 

If  the  theory  is  correct,  the  state  would  be  justified  in  pre¬ 
scribing  the  most  minute  details  for  the  regulation  of  the  per¬ 
sonal  conduct  of  individual  citizens,  as  to  things  in  no  wise 
affecting  the  great  public  interests.  Whenever  a  man  fails  in 
business,  or  loses  a  fortune  by  some  great  calamity,  or  droughts 
or  floods  destroy  his  crops,  the  legislature  could  levy  a  tax 
or  make  an  appropriation,  and  therefrom  establish  him  in 
business  or  make  good  the  loss.  The  practical  application  of 
the  theory  would  destroy  the  fundamental  principles  upon 
which  our  government  is  founded. 

Let  us  make  some  further  applications  of  this  principle,  and 
see  to  what  such  legislation  would  lead.  It  is,  of  course,  no 
objection  to  this  act  to  say  that  hereafter  the  legislature  may 
pass  another  act  that  is  invalid.  But  if  the  principle  of  the 
decision  by  which  the  present  one  is  saved,  in  its  logical  ex¬ 
tension,  will  protect  others  that  every  rational  mind  will  de¬ 
clare  void,  it  is  well  to  stop  for  reflection ;  for  it  is  a  question 
of  power,  and  not  discretion,  we  are  now  considering.  The 


HOURS  OF  LABOR— MINES  AND  SMELTERS  289 

business  of  operating  smelters  and  working  underground 
mines  is  purely  a  private  business.  It  is  not  affected  with  a 
public  interest,  or  devoted  to  a  public  use.  Even  here  the 
general  and  better  rule  is  that  regulations  of  such  businesses 
are  confined  to  their  public  side,  and  do  not  descend  to  inter¬ 
ference  in  contracts  and  strictly  private  dealings  between  em¬ 
ployers  and  employees.  Hence  smelting  does  not  come  within 
the  operation  of  the  principle  of  those  decisions  in  which  have 
been  upheld  reasonable  regulations  of  a  business  affected  by 
a  public  interest.  If,  to  protect  the  health  of  workmen  en¬ 
gaged  in  these  two  occupations,  the  legislature  may  limit  them 
to  eight  hours’  labor  per  day,  it  may  hereafter,  upon  the 
ground  that  idleness,  resulting  from  short  hours  of  labor, 
leads  to  drunkenness  and  gambling,  and  industry,  promoted  by 
longer  hours,  to  happiness  and  health,  enact  that  workmen 
must  labor  at  these  occupations  14  or  16  hours  per  day ;  and, 
by  extending  the  same  principle  to  other  occupations,  it  may 
say,  to  use  an  illustration  employed  in  argument,  that  a  man 
weighing  120  pounds  or  less  shall  not  work  in  a  stone  quarry, 
because  only  large  and  powerful  men  can  safely  work  therein ; 
that  only  men  free  from  a  tendency  to  tuberculosis  shall  work 
at  indoor  occupations,  because  those  so  afflicted  need  more 
pure  air  and  sunshine  than  they  can  get  if  excluded  from  the 
open  air ;  that  only  persons  not  needing  the  aid  of  eye-glasses 
shall  become  makers  or  repairers  of  watches,  because  labor, 
with  such  mechanical  aids,  upon  delicate  mechanisms,  tends 
to  destroy  vision ;  or  that  those  suffering  from  sluggish  livers 
shall  not  engage  in  sedentary  occupations,  because  their  health 
demands  active,  muscular  effort.  Then  it  is  only  one  step 
further  to  provide  by  law  the  style  and  quality  of  garments 
the  citizens  may  wear,  the  quantity  and  quality  of  food  he  may 
eat,  and  the  beverage  he  may  drink.  And,  because  one  can¬ 
not  support  and  properly  educate  his  family  for  less  than  a 
certain  amount  of  money,  the  legislature  may  declare  that,  to 
promote  the  general  welfare,  no  employer  shall  contract  to 
pay,  or  pay,  an  employee  less  than  an  arbitrary  wage,  so  fixed 
as  to  produce  the  required  sum.  Such  and  other  illustrations 


290 


AMERICAN  COURTS  IN  LABOR  CASES 


that  readily  suggest  themselves  are  germane,  and  each  and 
every  supposed  act  could  be  sustained  upon  the  same  principle 
that  would  make  the  act  before  us  valid.  If  counsel’s  conten¬ 
tion  be  sound,  that,  to  promote  the  general  welfare  and  protect 
the  public  health  or  safety,  the  legislature  is  above  the  consti¬ 
tution,  and  brooks  no  restraint,  if  it  is  the  sole  judge,  not 
merely  of  the  exigency,  but  also  of  the  subjects,  for  the  exer¬ 
cise  of  the  police  power,  and  its  reasonableness — then,  indeed, 
all  these,  and  almost  all  other  conceivable,  regulations  of 
private  affairs  are  permissible.  If  we  stop  to  consider  the 
form  of  government  under  which  we  live,  and  what  pains  the 
framers  of  our  organic  acts  took  to  protect  the  rights  of  the 
individual  citizen,  we  would  naturally  expect  to  find  that  meas¬ 
ures  passed  for  the  alleged  protection  of  the  citizen  against 
the  consequences  of  his  own  acts  would  clash  with  constitu¬ 
tional  safeguards  inserted  therein  to  conserve  the  inalienable 
rights  of  man.  .  .  . 

On  the  contrary,  it  is  a  distinct  and  emphatic  return — a 
retrogression — to  that  period  in  English  history  when  parlia¬ 
ment  busied  itself  in  passing  numerous  acts  interfering  with 
the  freedom  of  conscience  in  religious  matters,  and  in  pre¬ 
scribing  minute  regulations  of  the  personal  conduct  of  the 
individual,  against  which  our  ancestors  rebelled,  and  which 
was  one  among  other  causes  that  prompted  them  to  found 
here  a  government  under  which  it  would  be  impossible  thus 
to  interfere  with  the  purely  private  affairs  of  the  citizen. 

Our  conclusion  as  to  the  invalidity  of  this  act  is  grounded 
upon  principle.  Let  it  now  be  tested  by  the  authorities.  .  .  . 

This  summary  review  of  the  leading  authorities  shows 
clearly  to  our  minds  that  the  great  weight  of  authority,  as  well 
as  reason,  supports  the  conclusion  which  we  have  reached. 
The  result  of  our  deliberation,  therefore,  is  that  this  act  is  an 
unwarrantable  interference  with,  and  infringes,  the  right  of 
both  the  employer  and  employee  in  making  contracts  relating 
to  a  purely  private  business,  in  which  no  possible  injury  to 
the  public  can  result;  that  it  unjustly  and  arbitrarily  singles 
out  a  class  of  persons,  and  imposes  upon  them  restrictions 


HOURS  OF  LABOR— MINES  AND  SMELTERS 


291 


from  which  others  similarly  situated  and  substantially  in  the 
same  condition  are  exempt ;  and  that  it  is  not,  under  our  con¬ 
stitution,  a  valid  exercise  of  the  police  power  of  this  state, 
either  in  the  subject  selected  or  in  the  reasonableness  of  the 
regulation. 


CHAPTER  XVII 


Hours  of  Labor — Women 

For  more  than  thirty  years  the  validity  of  legislative  re¬ 
strictions  upon  the  employment  of  women  has  divided  the 
minds  of  American  jurists.  Private  rights,  the  sanctity 
of  freedom  of  contract,  equality  before  the  law  have  stood 
over  against  sex  differences,  social  well-being  and  the  proper 
exercise  of  the  police  power.  To  express  in  abstract  terms 
the  relation  between  these  points  of  view  would  not  be  a 
task  of  insuperable  difficulty.  To  group  special  cases  con¬ 
sistently  under  the  one  or  the  other  has  proven  a  task  that 
our  courts  have  not  been  able  to  perform  with  uniform 
satisfaction. 

Many  of  the  early  cases  that  came  before  the  state  courts 
turned  upon  the  employment  of  women  as  waitresses  in 
saloons.  In  1881,  a  California  law  forbidding  women  to 
work  as  waitresses  in  saloons  was  brought  before  the  su¬ 
preme  court  of  that  state.  The  court  pronounced  the  law 
unconstitutional  as  being  in  violation  of  the  rights  of  adult 
citizens  of  that  state.1  In  1884,  an  ordinance  of  the  city 
of  Cleveland  established  the  same  restriction  within  the 
municipal  limits.  The  supreme  court  of  Ohio  pronounced 
the  ordinance  valid,  but  on  the  special  ground  that  the  power 
to  regulate  the  sale  of  liquors  is  expressly  delegated  to  cities 
in  that  state.2 

1  Case  of  Mary  Maguire,  57  Cal.,  604. 

2  Bergman  v.  Cleveland,  39  Ohio,  651. 

292 


HOURS  OF  LABOR— WOMEN 


293 


Although  these  are  among  the  earlier  cases,  they  are  not 
the  earliest;  and  other  cases,  because  of  their  greater  im¬ 
portance,  have  attracted  more  attention.  The  restriction  of 
the  hours  of  labor  to  be  undertaken  by  women  in  manufac¬ 
turing  industries  has  been  contested  in  several  states.  Here 
there  are  two  clearly  defined  lines  of  argument,  each  one  of 
which  has  been  so  ably  developed  that  neither  has  yet  been 
completely  and  finally  driven  from  the  field. 

The  earliest  opinion,  recognized  as  the  leading  one  on  the 
one  side  of  the  question,  was  written  by  Judge  Lord  of  the 
supreme  judicial  court  of  Massachusetts  in  1876.  (Com¬ 
monwealth  v.  Hamilton  Mfg.  Co.)  The  law  under  consid¬ 
eration  was  one  limiting  to  ten  hours  a  day  the  legal  work¬ 
day  of  minors  under  eighteen  and  of  all  women.  The  de¬ 
cision  is  a  brief  one.  It  does  not  assume  that  an  elabor¬ 
ate  argument  is  necessary.  It  rather  takes  the  attitude  that 
the  burden  of  proof  rests  upon  those  who  undertake  to  show 
that  the  law  is  unconstitutional.  On  behalf  of  the  corpora¬ 
tions  it  was  asserted  that  the  act  of  incorporation  was  a  con¬ 
tract  with  the  commonwealth,  and  that  the  law  impaired 
that  contract.  This  the  court  would  not  admit.  A  consid¬ 
erable  portion  of  the  opinion  is  taken  up  with  a  considera¬ 
tion  of  this  question,  concluding  with  the  statement :  “  The 
law,  therefore,  violates  no  contract.”  Taking  up  other 
points,  the  court  continues  : 

[The  law]  merely  provides  that  in  an  employment,  which 
the  legislature  has  evidently  deemed  to  some  extent  dangerous 
to  health,  no  person  shall  be  engaged  in  labor  more  than  ten 
hours  a  day  or  sixty  hours  a  week.  There  can  be  no<  doubt 
that  such  legislation  may  be  maintained  either  as  a  health  or 
police  regulation,  if  it  were  necessary  to  resort  to  either  of 
those  sources  for  power.  This  principle  has  been  so  frequently 
recognized  in  this  commonwealth  that  reference  to  the  de¬ 
cisions  is  unnecessary. 


294 


AMERICAN  COURTS  IN  LABOR  CASES 


It  is  also  said  that  the  law  violates  the  right  of  Mary  Shirley 
to  labor  in  accordance  with  her  own  judgment  as  to  the  num¬ 
ber  of  hours  she  shall  work.  The  obvious  and  conclusive  reply 
to  this  is,  that  the  law  does  not  limit  her  right  to  labor  as  many 
hours  per  day  or  per  week  as  she  may  desire ;  it  does  not  in 
terms  forbid  her  laboring  in  any  particular  business  or  occu¬ 
pation  as  many  hours  per  day  or  per  week,  as  she  may  desire ; 
it  merely  prohibits  her  being  employed  continuously  in  the 
same  service  more  than  a  certain  number  of  hours  per  day  or 
week,  which  is  so  clearly  within  the  power  of  the  legislature, 
that  it  becomes  unnecessary  to  inquire  whether  it  is  a  matter 
of  grievance  of  which  this  defendant  has  a  right  to  complain. 

The  reasoning  is  not  complete  enough  to  satisfy  one  who 
would  like  to  know  the  full  mind  of  the  court  upon  a 
question  that  has  become  of  so  great  importance.  The  de¬ 
cision  was  written  at  a  date  when  the  principles  involved 
had  not  yet  come  to  be  regarded  as  of  much  consequence. 
At  the  same  time  the  case  is  one  of  more  than  usual  im¬ 
portance,  being  cited  in  other  cases  as  authority  for  similar 
legislation. 

After  the  lapse  of  twenty-six  years  two  similar  cases 
came  up  for  adjudication.  In  these  the  scene  was  shifted 
to  the  West.  A  law  enacted  by  the  Nebraska  legislature 
came  before  the  supreme  court  of  that  state  in  1902,  and 
in  the  same  year  a  similar  law  was  brought  before  the  su¬ 
preme  court  of  the  state  of  Washington.  The  two  statutes 
were  similar  to  that  upheld  in  Massachusetts  in  that  they 
limited  the  hours  of  women’s  labor  to  ten  a  day.  The 
Nebraska  law  added  a  clause  forbidding  night  work.  In 
the  decision  of  these  cases  the  points  in  controversy  were 
discussed  at  greater  length  than  in  the  earlier  case,  and  the 
opinions  of  the  two  courts  incorporated  the  line  of  argu¬ 
ment  which  of  late  has  been  more  fully  developed. 

In  the  first  of  these  cases  (Wenham  v.  State)  Judge 


HOURS  OF  LABOR— WOMEN 


295 


Barnes,  who  wrote  the  opinion,  refers  to  the  importance 
of  the  relations  existing  between  the  departments  of  our 
government.  “  Courts  should  never  usurp  legislative  func¬ 
tions.  ...  If,  after  a  careful  consideration  of  the  question 
in  all  of  its  bearings,  the  matter  [of  constitutionality]  is 
left  in  doubt,  we  should  resolve  such  doubt  in  favor  of  the 
law,  and  declare  it  valid.”  The  court  admits  that  the  plain¬ 
tiff’s  business  is  property  and  that  the  ability  of  the  work¬ 
ing  women  is  also  property. 

It  must  be  conceded,  however,  that  every  property  holder 
is  secured  in  his  title  thereto  and  holds  it  under  the  implied 
rule  and  understanding  that  its  use  may  be  so  regulated  and 
restricted  that  it  shall  not  be  injurious  to  the  equal  enjoyment 
of  others  having  the  equal  right  to  the  enjoyment  of  their 
property,  or  to  the  rights  of  the  community  in  which  he  lives. 
All  property  in  this  state  is  held  subject  to  rules  regulating 
the  common  good  and  the  general  welfare  of  our  people. 

The  limitation  upon  such  rights  should  of  course  be  reason¬ 
able,  but  the  reasonableness  is  to  be  determined  by  the  legis¬ 
lature  as  a  matter  of  expediency.  This  question  the  legis¬ 
lature  is  well  fitted  to  answer. 

The  members  of  the  legislature  come  from  no  particular 
class.  They  are  elected  from  every  portion  of  the  state,  and 
come  from  every  avocation  and  from  all  the  walks  of  life. 
They  have  observed  the  conditions  with  which  they  are  sur¬ 
rounded,  and  know  from  experience  what  laws  are  necessary 
to  be  enacted  for  the  welfare  of  the  communities  in  which  they 
reside. 

Justification  of  the  law  is  found  in  the  fact  that  “women 
and  children  have  always,  to  a  certain  extent,  been  wards 
of  the  state.”  While  they  may  own  property,  yet  they  have 
no  voice  in  the  enactment  of  the  laws.  These  considera¬ 
tions  were  evidently  of  importance  to  the  court,  but  a  con¬ 
sideration  of  greater  weight  follows. 


AMERICAN  COURTS  IN  LABOR  CASES 


2g6 

[Women]  are  unable,  by  reason  of  their  physical  limita¬ 
tions,  to  endure  the  same  hours  of  exhaustive  labor  as  may  be 
endured  by  adult  males.  Certain  kinds  of  work  which  may  be 
performed  by  men  without  injury  to  their  health  would  wreck 
the  constitutions  and  destroy  the  health  of  women,  and  render 
them  incapable  of  bearing  their  share  of  the  burdens  of  the 
family  and  the  home.  The  state  must  be  accorded  the  right 
to  guard  and  protect  women,  as  a  class,  against  such  a  condi¬ 
tion  ;  and  the  law  in  question,  to  that  extent,  conserves  the 
public  health  and  welfare. 

In  the  matter  of  freedom  of  contract,  the  opinion  goes 
on  to  say  : 

We  may  well  declare  a  law  unconstitutional  which  inter¬ 
feres  with  or  abridges  the  right  of  adult  males  to  contract  with 
each  other  in  any  of  the  business  affairs  or  vocations  of  life. 
The  employer  and  the  laborer  are  practically  on  an  equal  foot¬ 
ing,  but  these  observations  do  not  apply  to  women  and  chil¬ 
dren.  Of  the  many  vocations  in  this  country,  comparatively 
few  are  open  to  women.  Their  field  of  remunerative  labor  is 
restricted.  Competition  for  places  therein  is  necessarily  great. 
The  desire  for  place,  and  in  many  instances  the  necessity  of 
obtaining  employment,  would  subject  them  to  hardships  and 
exactions  which  they  would  not  otherwise  endure.  The  em¬ 
ployer  who  seeks  to  obtain  the  most  hours  of  labor  for  the 
least  wages  has  such  an  advantage  over  them  that  the  wisdom 
of  the  law,  for  their  protection,  cannot  well  be  questioned. 
No  doubt,  these  considerations  were  the  moving  cause  for 
the  passage  of  the  law  in  question. 

Judge  Dunbar  in  his  opinion  in  the  second  of  these  two 
cases  (State  v.  Buchanan)  goes  more  directly  to  the  point, 
although  in  general  the  line  of  reasoning  is  much  the  same. 
He  was  the  first  to  emphasize  the  particular  physiological 
reasons  for  such  legislation. 

It  is  a  matter  of  universal  knowledge  with  all  reasonably 


HOURS  OF  LABOR-WOMEN 


297 


intelligent  people  of  the  present  age  that  continuous  standing 
on  the  feet  by  women  for  a  great  many  consecutive  hours  is 
deleterious  to  their  health.  It  must  logically  follow  that  that 
which  would  deleteriously  affect  any  great  number  of  women 
who  are  the  mothers  of  succeeding  generations  must  neces¬ 
sarily  affect  the  public  welfare  and  the  public  morals.  Law 
is,  or  ought  to  be,  a  progressive  science.  While  the  principles 
of  justice  are  immutable,  changing  conditions  of  society  and 
the  evolution  of  employment  make  a  change  in  the  application 
of  principles  absolutely  necessary  to  an  intelligent  administra¬ 
tion  of  government.  In  the  early  history  of  the  law,  when  em¬ 
ployments  were  few  and  simple,  the  relative  conditions  of  the 
citizen  and  the  state  were  different,  and  many  employments 
and  uses  which  were  then  considered  inalienable  rights  have 
since,  from  the  very  necessity  of  changed  conditions,  been  sub¬ 
jected  to  legislative  control,  restriction,  and  restraint.  This 
all  flows  from  the  old  announcement  made  by  Blackstone  that 
when  man  enters  into  society  as  a  compensation  for  the  pro¬ 
tection  which  society  gives  to  him  he  must  yield  up  some  of 
his  natural  rights,  and,  as  the  responsibilities  of  the  govern¬ 
ment  increase,  and  a  greater  degree  of  protection  is  afforded 
to  the  citizen,  the  recompense  is  the  yielding  of  more  individual 
rights.  .  .  .  The  changing  conditions  of  society  have  made 
an  imperative  call  upon  the  state  for  the  exercise  of  these  addi¬ 
tional  powers,  and  the  welfare  of  society  demands  that  the 
state  should  assume  these  powers,  and  it  is  the  duty  of  the 
court  to  sustain  them  whenever  it  is  found  that  they  are  based 
upon  the  idea  of  the  promotion  and  protection  of  society. 

In  1906  the  supreme  court  of  Oregon  examined  and  up¬ 
held  a  similar  law  in  State  v.  Muller.  This  case  was  of 
particular  importance,  being  appealed  to  the  United  States 
supreme  court  and  eliciting  the  opinion  of  that  court  in 
Muller  v.  Oregon.  The  law  in  question  provided  that  “  no 
female  [shall]  be  employed  in  any  mechanical  establishment 
or  factory  or  laundry  in  this  state  more  than  ten  hours 
during  any  one  day,”  and  that  “  any  employer  who  shall 


AMERICAN  COURTS  IN  LABOR  CASES 


298 

require  any  female  to  work  in  any  of  the  places  mentioned 
[in  excess  of  the  permitted  ten  hours]  shall  be  guilty  of  a 
misdemeanor.”  The  court  held  that  the  labor  contract  is 
“  subject  to  such  reasonable  limitations  as  are  essential  to 
the  peace,  health,  welfare  and  good  order  of  the  commun¬ 
ity.”  The  question  to  be  determined,  then,  was  the  rea¬ 
sonableness  of  the  law.  The  view  of  the  court  as  expressed 
by  Chief  Justice  Bean  upon  this  point  is  found  in  its  state¬ 
ment  that  the  law  was  enacted 

in  order  to  conserve  the  public  health  and  welfare  by  protect¬ 
ing  the  physical  well-being  of  females  who  work  in  mechanical 
establishments,  factories  and  laundries.  Such  legislation  must 
be  taken  as  expressing  the  belief  of  the  legislature,  and  through 
it  of  the  people,  that  the  labor  of  females  in  such  establish¬ 
ments  in  excess  of  ten  hours  in  any  one  day  is  detrimental  to 
health  and  injuriously  affects  the  public  welfare. 

The  more  elaborate  opinion  handed  down  by  the  supreme 
court  of  the  United  States  in  its  review  of  this  case,  as  well 
as  the  high  degree  of  authority  accorded  to  the  decisions  of 
this  tribunal,  make  Muller  v.  Oregon  a  case  of  the  greatest 
importance.  In  developing  the  argument  upon  which  its 
decision  is  based,  the  court  manifests  great  caution.  It  as¬ 
serts  the  legal  equality  rather  than  the  legal  inequality  of 
women  and  men,  and  it  admits  that  the  “  general  right  to 
contract  in  relation  to  one’s  business  is  part  of  the  liberty  of 
the  individual,  protected  by  the  fourteenth  amendment  to 
the  federal  Constitution.”  Yet  this  liberty  is  not  absolute: 
a  state  may  restrict  in  many  respects  the  individual’s  power 
to  contract.  And  admitting  the  legal  equality  of  men  and 
women,  it  does  not  necessarily  follow  that  there  are  not 
differences  of  sex  sufficient  to  justify  a  different  rule  re¬ 
specting  the  restriction  of  hours  of  labor.  These  differences 
are  two,  and  may  be  expressed  in  the  language  of  the  court. 


HOURS  OF  LABOR-WOMEN 


299 


That  woman’s  physical  structure  and  the  performance  of 
maternal  functions  place  her  at  a  disadvantage  in  the  struggle 
for  subsistence  is  obvious.  This  is  especially  true  when  the 
burdens  of  motherhood  are  upon  her.  Even  when  they  are 
not,  by  abundant  testimony  of  the  medical  fraternity  continu¬ 
ance  for  a  long  time  on  her  feet  at  work,  repeating  this  from 
day  to  day,  tends  to  injurious  effects  upon  the  body,  and,  as 
healthy  mothers  are  essential  to  vigorous  offspring,  the  physi¬ 
cal  well-being  of  woman  becomes  an  object  of  public  interest 
and  care  in  order  to  preserve  the  strength  and  vigor  of  the 
race.  Still  again,  history  discloses  the  fact  that  woman  has 
always  been  dependent  upon  man.  ...  It  is  still  true  that  in 
the  struggle  for  subsistence  she  is  not  an  equal  competitor 
with  her  brother.  Though  limitations  upon  personal  and  con¬ 
tractual  rights  may  be  removed  by  legislation,  there  is  that  in 
her  disposition  and  habits  of  life  which  will  operate  against 
a  full  assertion  of  those  rights.  She  will  still  be  where  some 
legislation  to  protect  her  seems  necessary  to  secure  a  real 
equality  of  right.  Doubtless  there  are  individual  exceptions, 
and  there  are  many  respects  in  which  she  has  an  advantage 
over  him ;  but  looking  at  it  from  the  viewpoint  of  the  effort 
to  maintain  an  independent  position  in  life,  she  is  not  upon  an 
equality.  Differentiated  by  these  matters  from  the  other  sex, 
she  is  properly  placed  in  a  class  by  herself,  and  legislation 
designed  for  her  protection  may  be  sustained,  even  when  like 
legislation  is  not  necessary  for  men,  and  could  not  be  sus¬ 
tained.  It  is  impossible  to  close  one’s  eyes  to  the  fact  that 
she  still  looks  to  her  brother  and  depends  upon  him.  Even 
though  all  restrictions  on  political,  personal,  and  contractual 
rights  were  taken  away,  and  she  stood,  as  far  as  statutes  are 
concerned,  upon  an  absolutely  equal  plane  with  him,  it  would 
still  be  true  that  she  is  so  constituted  that  she  will  rest  upon 
and  look  to  him  for  protection ;  that  her  physical  structure  and 
a  proper  discharge  of  her  maternal  functions — having  in  view 
not  merely  her  own  health,  but  the  well-being  of  the  race — 
justify  legislation  to  protect  her  from  the  greed  as  well  as  the 
passion  of  man.  The  limitations  which  this  statute  places 


3°° 


AMERICAN  COURTS  IN  LABOR  CASES 


upon  her  contractual  powers,  upon  her  right  to  agree  with  her 
employer  as  to  the  time  she  shall  labor,  are  not  imposed  solely 
for  her  benefit,  but  also  largely  for  the  benefit  of  all.  Many 
words  cannot  make  this  plainer.  The  two  sexes  differ  in 
structure  of  body,  in  the  functions  to  be  performed  by  each, 
in  the  amount  of  physical  strength,  in  the  capacity  for  long- 
continued  labor,  particularly  when  done  standing,  the  influ¬ 
ence  of  vigorous  health  upon  the  future  well-being  of  the  race, 
the  self-reliance  which  enables  one  to  assert  full  rights,  and 
in  the  capacity  to  maintain  the  struggle  for  subsistence.  This 
difference  justifies  a  difference  in  legislation,  and  upholds  that 
which  is  designed  to  compensate  for  some  of  the  burdens  which 
rest  upon  her. 

The  leading  case  in  which  the  validity  of  such  restrictive 
legislation  is  denied  is  Ritchie  v.  People.  This  case  was  de¬ 
cided  by  the  supreme  court  of  Illinois  in  1895.  At  that  time 
the  Massachusetts  case,  decided  nineteen  years  earlier,  was 
the  only  important  decision  dealing  with  the  subject.  The 
Illinois  law  prohibited  women  employed  in  manufacturing 
establishments  from  working  longer  than  eight  hours  in  a 
day.  It  thus  undertook  to  make  the  legal  workday  for 
women  in  such  establishments  two  hours  shorter  that  the 
workday  established  by  the  Massachusetts  law.  The  opinion 
is  long  and  goes  fully  into  the  points  in  controversy.  First, 
Judge  Magruder  dwells  upon  the  constitutional  rights  of 
citizens,  emphasizing  especially  that  “  the  right  to  contract 
is  the  only  way  by  which  a  person  can  rightfully  acquire 
property  by  his  own  labor.”  This  principle  applied  to  the 
provisions  of  the  law  leads  at  once  to  the  conclusion  that  the 
act  is  unconstitutional  unless  it  can  be  positively  shown  that 
there  is  some  special  ground  for  upholding  it.  No  such 
ground  is  discovered. 

Attention  is  directed  to  the  fact  that  the  prohibition  is 
not  placed  upon  all  women..  Those  employed  in  tnanu- 


HOURS  OF  LABOR— WOMEN 


3°i 


factures  are  brought  within  the  terms  of  the  law,  but  not 
women  employed  in  other  occupations,  as  saleswomen,  do¬ 
mestic  servants,  bookkeepers,  stenographers,  typewriters. 
These 

are  at  liberty  to  contract  for  as  many  hours  of  labor  in  a  day 
as  they  choose.  The  manner  in  which  the  section  thus  dis¬ 
criminates  against  one  class  of  employers  and  employees  and 
in  favor  of  all  others  places  it  in  opposition  to  the  constitu¬ 
tional  guaranties  hereinbefore  discussed,  and  so  renders  it  in¬ 
valid. 

But  the  objection  to  the  particular  and  discriminating- 
character  of  the  law  is  not  the  leading  objection.  Of  fun¬ 
damental  importance  is  the  fact  that  the  enactment  is  “  a 
purely  arbitrary  restriction  upon  the  fundamental  rights  of 
the  citizen  to  control  his  or  her  own  time  and  faculties. 
It  substitutes  the  judgment  of  the  legislature  for  the  judg*- 
ment  of  the  employer  and  employee  in  a  matter  about  which 
they  are  competent  to  agree  with  each  other.”  This  re¬ 
striction  is  a  burden  that  is  “  unreasonable  and  unneces¬ 
sary  and  even  though  it  were  imposed  upon  all  citizens 
or  classes  of  citizens,  it  would  transcend  the  authority  of 
the  legislature. 

The  contention  that  the  act  of  the  legislature  may  be  up¬ 
held  as  an  exercise  of  police  power  is  very  positively  dis¬ 
countenanced.  That  power,  it  is  admitted,  is  very  broad 
and  far-reaching,  but  it  is  not  without  its  limitations.  It  is 
not  above  the  constitution;  and  its  exercise,  moreover,  must 
have  some  relation  to  the  comfort,  welfare  or  safety  of  so¬ 
ciety.  This  the  law  under  consideration  does  not  have. 
“  It  is  not  the  nature  of  the  things  done,  but  the  sex  of  the 
persons  doing  them,  which  is  made  the  basis  of  the  claim 
that  the  act  is  a  measure  for  the  promotion  of  the  public 
health.”  The  defense  of  the  law  based  on  the  physical  in- 


AMERICAN  COURTS  IN  LABOR  CASES 


302 

feriority  of  women  does  not  appeal  to  the  mind  of  the 
court.  “  It  will  not  be  denied,”  the  court  replies,  “  that  wo¬ 
man  is  entitled  to  the  same  rights,  under  the  constitution,  to 
make  contracts  with  reference  to  her  labor,  as  are  secured 
thereby  to  men.”  The  fourteenth  amendment  fully  pro¬ 
tects  persons  and  citizens. 

Woman  is  both  a  “  citizen  ”  and  a  “  person  ”  within  the 
meaning  of  this  section.  ...  As  a  “  citizen,”  woman  has  the 
right  to  acquire  and  possess  property  of  every  kind.  As  a 
“  person,”  she  has  the  right  to  claim  the  benefit  of  the  con¬ 
stitutional  provision  that  she  shall  not  be  deprived  of  life, 
liberty  or  property  without  due  process  of  law.  Involved  in 
these  rights  thus  guaranteed  to  her  is  the  right  to  make  and 
enforce  contracts.  The  law  accords  to  her,  as  to  every  other 
citizen,  the  right  to  gain  a  livelihood  by  intelligence,  honesty 
and  industry  in  the  arts,  the  sciences,  the  professions  or  other 
vocations.  Before  the  law,  her  right  to  a  choice  of  vocations 
cannot  be  said  to  be  denied  or  abridged  on  account  of  sex. 
The  tendency  of  legislation  in  this  state  has  been  to  recognize 
the  rights  of  woman  in  the  particulars  here  specified. 

Legislation  is  cited  in  evidence  of  this  attitude.  The  opinion 
then  continues : 

But  inasmuch  as  sex  is  no  bar,  under  the  constitution  and 
law,  to  the  endowment  of  woman  with  the  fundamental  and 
inalienable  rights  of  liberty  and  property,  which  include  the 
right  to  make  her  own  contracts,  the  mere  fact  of  sex  will  not 
justify  the  legislature  in  putting  forth  the  police  power  of  the 
state  for  the  purpose  of  limiting  her  exercise  of  those  rights, 
unless  the  courts  are  able  to  see  that  there  is  some  fair,  just, 
and  reasonable  connection  between  such  limitation  and  the 
public  health,  safety,  or  welfare  proposed  to  be  secured  by  it. 

Counsel  for  the  people  refer  to  statements  in  the  text-books 
recognizing  the  propriety  of  regulations  which  forbid  women 
to  engage  in  certain  kinds  of  work  altogether.  Thus  it  is  said 


HOURS  OF  LABOR— WOMEN 


303 


in  Cooley  on  Constitutional  Limitations,  that  “  some  employ¬ 
ments  .  .  .  may  be  admissible  for  males  and  improper  for 
females,  and  regulations  recognizing  the  impropriety,  and  for¬ 
bidding  women  engaging  in  them,  would  be  open  to  no  reason¬ 
able  objection.”  Attention  is  also  called  to  the  above-men¬ 
tioned  act  of  March  22,  1872,  which  makes  an  exception  of 
military  service,  and  provides  that  nothing  in  the  act  shall  be 
construed  as  requiring  any  female  to  work  on  streets  or  roads, 
or  serve  on  juries.  But,  without  stopping  to  comment  upon 
measures  of  this  character,  it  is  sufficient  to  say  that  what  is 
said  in  reference  to  them  has  no  application  to  the  act  of  1893. 
The  act  is  not  based  upon  the  theory  that  the  manufacture  of 
clothing,  wearing  apparel,  and  other  articles  is  an  improper 
occupation  for  women  to  be  engaged  in.  It  does  not  inhibit 
their  employment  in  factories  or  workshops.  On  the  con¬ 
trary,  it  recognizes  such  places  as  proper  for  them  to  work  in 
by  permitting  their  labor  therein  during  eight  hours  of  each 
day.  The  question  here  is  not  whether  a  particular  employ¬ 
ment  is  a  proper  one  for  the  use  of  female  labor,  but  the  ques¬ 
tion  is  whether,  in  an  employment  which  is  conceded  to  be 
lawful  in  itself,  and  suitable  for  women  to  engage  in,  she  shall 
be  deprived  of  the  right  to  determine  for  herself  how  many 
hours  .she  can  and  may  work  during  each  day.  There  is  no  rea¬ 
sonable  ground — at  least  none  which  has  been  made  manifest 
to  us  in  the  arguments  of  counsel — for  fixing  upon  eight  hours 
in  one  day  as  the  limit  within  which  woman  can  work  without 
injury  to  her  physique,  and  beyond  which,  if  she  work,  injury 
will  necessarily  follow.  But  the  police  power  of  the  state  can 
only  be  permitted  to  limit  or  abridge  such  a  fundamental  right 
as  the  right  to  make  contracts  when  the  exercise  of  such  power 
is  necessary  to  promote  the  health,  comfort,  welfare,  or  safety 
of  society  or  the  public;  and  it  is  questionable  whether  it  can 
be  exercised  to  prevent  injury  to  the  individual  engaged  in 
a  particular  calling.  [Quoting  Tiedeman  in  his  work  on  Limi¬ 
tations  of  Police  Power ]  :  “  In  so  far  as  the  employment  of  a 
certain  class  in  a  particular  occupation  may  threaten  or  inflict 
damage  upon  the  public  or  third  persons,  there  can  be  no 


304 


AMERICAN  COURTS  IN  LABOR  CASES 


doubt  as  to  the  constitutionality  of  any  statute  which  pro¬ 
hibits  their  prosecution  of  that  trade.  But  it  is  questionable, 
except  in  the  case  of  minors,  whether  the  prohibition  can  rest 
upon  the  .claim  that  the  employment  will  prove  hurtful  to  them. 
.  .  .  There  can  be  no  more  justification  for  the  prohibition  of 
the  prosecution  of  certain  callings  by  women  because  the  em¬ 
ployment  will  prove  hurtful  to  themselves  than  it  would  be 
for  the  state  to  prohibit  men  from  working  in  the  manufacture 
of  white  lead  because  they  are  apt  to  contract  lead  poisoning, 
or  to  prohibit  occupation  in  certain  parts  of  iron-smelting 
works,  because  the  lives  of  the  men  so  engaged  are  materially 
shortened.” 

In  conclusion  the  Judge  quotes  an  extract  from  the  New 
York  court  of  appeals,  In  re  Jacobs,  expressly  stating  that 
the  view  is  adopted  by  the  Illinois  court. 

When  a  health  law  is  challenged  in  the  courts  as  unconsti¬ 
tutional  on  the  ground  that  it  arbitrarily  interferes  with  per¬ 
sonal  liberty  and  private  property,  without  due  process  of  law, 
the  courts  must  be  able  to  see  that  it  has  at  least  in  fact  some 
relation  to  the  public  health,  that  the  public  health  is  the  end 
actually  aimed  at,  and  that  it  is  appropriate  and  adapted  to  that 
end.  This  we  have  not  been  able  to  see  in  this  law,  and  we 
must,  therefore,  pronounce  it  unconstitutional  and  void.  In 
reaching  this  conclusion,  we  have  not  been  unmindful  that  the 
power  which  courts  possess  to  condemn  legislative  acts  which 
are  in  conflict  with  the  supreme  law  should  be  exercised  with 
great  caution,  and  even  with  reluctance.  But,  as  said  by 
Chancellor  Kent,  “  It  is  only  by  the  free  exercise  of  this 
power  that  courts  of  justice  are  enabled  to  repel  assaults  and 
to  protect  every  part  of  the  government  and  every  member 
of  the  community  from  undue  and  destructive  innovations 
upon  their  charter  rights.” 

The  second  decision  of  importance,  restricting  on  con¬ 
stitutional  grounds  legislation  regarding  hours  of  women’s 


HOURS  OF  LABOR— WOMEN 


3°5 


work,  came  from  the  court  of  appeals  of  New  York  in  the 
case  of  People  v.  Williams.  This  opinion,  written  by  Judge 
Gray,  was  handed  down  in  1907,  the  year  intervening  be¬ 
tween  the  Oregon  state  court  decision  and  that  of  the  United 
States  supreme  court  on  the  appealed  case.  While  in  a 
sense  the  principle  was  the  same,  yet  the  provisions  of  the 
law  under  consideration  were  different.  The  court  had  be¬ 
fore  it,  so  far  as  the  principles  are  concerned,  the  two  lines 
of  argument  fully  developed,  both  with  equal  authority. 
Although  the  greater  number  of  state  court  decisions  was 
already  on  the. side  upon  which  the  Oregon  court  had  placed 
itself,  the  authority  of  the  United  States  supreme  court  had 
not  yet  been  added.  The  statutes  considered  in  the  cases 
already  referred  to  had  limited  the  length  of  the  day  to  ten 
or  eight  hours.  The  New  York  statute  prohibited  night 
work  for  women,  restricting  their  legal  hours  of  labor  in 
factories  to  the  hours  between  six  o’clock  in  the  morning 
and  nine  o’clock  in  the  evening.  Between  the  two  prin¬ 
ciples  advanced  in  the  other  cases  the  New  York  court  chose 
that  of  the  Illinois  decision  as  its  own.  Yet  the  reasoning 
is  elaborated  in  a  somewhat  different  temper. 

In  enacting  the  law  in  question  the  legislature,  the  court 
says, 

has  overstepped  the  limits  set  by  the  constitution  of  the  state 
to  the  exercise  of  the  power  to  interfere  with  the  rights  of  citi¬ 
zens.  The  fundamental  law  of  the  state,  as  embodied  in  its 
constitution,  provides  that  “  no  person  shall  ...  be  deprived 
of  life,  liberty  or  property  without  due  process  of  law.”  Ar¬ 
ticle  1,  sec.  6.  The  provisions  of  the  state  and  of  the  federal 
constitutions  protect  every  citizen  in  the  right  to  pursue  any 
lawful  employment  in  a  lawful  manner.  He  enjoys  the  utmost 
freedom  to  follow  his  chosen  pursuit,  and  any  arbitrary  dis¬ 
tinction  against,  or  deprivation  of,  that  freedom  by  the  legis¬ 
lature  is  an  invasion  of  the  constitutional  guaranty.  Under 


o06  AMERICAN  COURTS  IN  LABOR  CASES 

our  laws  men  and  women  now  stand  alike  in  their  constitu¬ 
tional  rights,  and  there  is  no  warrant  for  making  any  dis¬ 
crimination  between  them  with  respect  to  the  liberty  of  per¬ 
son  or  of  contract. 

Replying  to  the  claim  that  the  law  was  authorized  as  an 
exercise  of  the  police  power,  the  court  says : 

It  is  to  be  observed  that  it  is  not  a  regulation  of  the  number 
of  hours  of  labor  for  working  women.  The  enactment  goes 
far  beyond  this.  It  attempts  to  take  away  the  right  of  a 
woman  to  labor  before  6  o'clock  in  the  morning,  or  after  9 
o'clock  in  the  evening,  without  any  reference  to  other  consid¬ 
erations.  In  providing  that  “  no  female  shall  be  employed, 
permitted,  or  suffered  to  work  in  any  factory  in  this  state 
before  six  o’clock  in  the  morning,  or  after  nine  o’clock  in  the 
evening  of  any  day,”  she  is  prevented,  however  willing,  from 
engaging  herself  in  a  lawful  employment  during  the  specified 
periods  of  the  24  hours.  Except  as  to  women  under  21  years 
of  age,  this  was  the  first  attempt  on  the  part  of  the  state  to 
restrict  their  liberty  of  person,  or  their  freedom  of  contract, 
in  the  pursuit  of  a  vocation.  I  find  nothing  in  the  language 
of  the  section  which  suggests  the  purpose  of  promoting  health, 
except  as  it  might  be  inferred  that  for  a  woman  to  work  dur¬ 
ing  the  forbidden  hours  of  night  would  be  unhealthful.  If 
the  inhibition  of  the  section  in  question  had  been  framed  to 
prevent  the  10  hours  of  work  from  being  performed  at  night, 
or  to  prolong  them  beyond  9  o’clock  in  the  evening,  it  might 
more  readily  be  appreciated  that  the  health  of  women  was  the 
matter  of  legislative  concern.  That  is  not  the  effect,  nor  the 
sense,  of  the  provision  of  the  section  with  which  alone  we  are 
dealing.  It  was  not  the  case  upon  which  this  defendant  was 
convicted.  If  this  enactment  is  to  be  sustained,  then  an  adult 
woman,  although  a  citizen,  and  entitled  as  such  to  all  the 
rights  of  citizenship  under  our  laws,  may  not  be  employed, 
nor  contract  to  work,  in  any  factory  for  any  period  of  time, 
no  matter  how  short,  if  it  is  within  the  prohibited  hours,  and 


HOURS  OF  LABOR— WOMEN 


307 


this,  too,  without  any  regard  to  the  healthfulness  of  the  em¬ 
ployment.  It  is  clear,  as  it  seems  to  me,  that  this  legislation 
cannot,  and  should  not,  be  upheld  as  a  proper  exercise  of  the 
police  power.  It  is,  certainly,  discriminative  against  female 
citizens,  in  denying  to  them  equal  rights  with  men  in  the  same 
pursuit. 

The  right  of  the  state,  as  parens  patriae,  to  restrict,  or  to 
regulate,  the  labor  and  employment  of  children  is  unquestion¬ 
able;  but  an  adult  female  is  not  to  be  regarded  as  a  ward  of 
the  state,  or  in  any  other  light  than  the  man  is  regarded,  when 
the  question  relates  to  the  business  pursuit  or  calling.  She  is 
no  more  a  ward  of  the  state  than  is  the  man.  She  is  entitled 
to  enjoy,  unmolested,  her  liberty  of  person,  and  her  freedom 
to  work  for  whom  she  pleases,  where  she  pleases,  and  as  long 
as  she  pleases,  within  the  general  limits  operative  upon  all 
persons  alike,  and  shall  we  say  that  this  is  valid  legislation, 
which  closes  the  doors  of  a  factory  to  her  before  and  after 
certain  hours?  I  think  not. 

In  closing  the  Judge  felt  called  upon  to  utter  a  word  of 
warning,  as  follows : 

The  courts  have  gone  very  far  in  upholding  legislative  en¬ 
actments,  framed  clearly  for  the  welfare,  comfort,  and  health 
of  the  community,  and  that  a  wide  range  in  the  exercise  of 
the  police  power  of  the  state  should  be  conceded,  I  do  not 
deny;  but  when  it  is  sought,  under  the  guise  of  a  labor  law, 
arbitrarily,  as  here,  to  prevent  an  adult  female  citizen  from 
working  at  any  time  of  the  day  that  suits  her,  I  think  it  is 
time  to  call  a  halt.  It  arbitrarily  deprives  citizens  of  their 
right  to  contract  with  each  other.  The  tendency  of  legisla¬ 
tures,  in  the  form  of  regulatory  measures,  to  interfere  with 
the  lawful  pursuits  of  citizens,  is  becoming  a  marked  one  in 
this  country,  and  it  behooves  the  courts,  firmly  and  fearlessly, 
to  interpose  the  barriers  of  their  judgments,  when  invoked 
to  protect  against  legislative  acts  plainly  transcending  the 
powers  conferred  by  the  constitution  upon  the  legislative  body. 


AMERICAN  COURTS  IN  LABOR  CASES 


308 

The  line  of  argument  followed  in  the  first  Ritchie  case 
has  been  recently  largely  annulled  by  another  decision  of  the 
Illinois  supreme  court.  In  April  of  1910  that  court  handed 
down  an  opinion  (Ritchie  v.  Wayman)  in  which  it  held  that 
the  establishment  of  a  ten-hour  day  for  women  is  within  the 
police  power  of  the  state.  The  chief  interest  of  this  opinion 
lies  in  the  fact  that  it  makes  a  legal  restriction  on  the 
hours  of  labor  of  women  binding  in  an  important  jurisdic¬ 
tion  in  which  such  restriction  had  previously  been  declared 
unconstitutional.  It  contains  no  new  arguments.  The  only 
point  of  novelty  is  the  manner  in  which  the  court  seeks  to 
reconcile  its  present  view  with  that  taken  fifteen  years  ago. 

Some  of  the  more  significant  sentences  from  the  opinion 
follow : 

If,  therefore,  the  public  interest  requires  that  the  time  which 
women  shall  be  permitted  to  work  in  any  mechanical  estab¬ 
lishment  or  factory  or  laundry  should  be  limited  to  ten  hours 
in  any  one  day,  we  are  unable  to  see  why  this  statute  is  not 
constitutional.  .  .  .  The  property  rights  of  the  citizen  are  al¬ 
ways  held  and  enjoyed  subject  to  the  reasonable  exercise  of 
the  police  power  by  the  state.  ...  It  is  known  to  all  men 
(and  what  we  know  as  men  we  cannot  profess  to  be  ignorant 
of  as  judges)  that  woman’s  physical  structure  and  the  per¬ 
formance  of  maternal  functions  place  her  at  a  great  disad¬ 
vantage  in  the  battle  of  life.  ...  It  would  therefore  seem 
obvious  that  legislation  which  limits  the  number  of  hours 
which  women  shall  be  permitted  to  work  to  ten  hours  in  a 
single  day  in  such  employments  as  are  carried  on  in  mechanical 
establishments,  factories  and  laundries  would  tend  to  preserve 
the  health  of  women  and  insure  the  production  of  vigorous 
offspring  by  them,  and  would  directly  conduce  to  the  health, 
morals  and  general  welfare  of  the  public,  and  that  such  legis¬ 
lation  would  fall  clearly  within  the  police  power  of  the  state. 

In  referring  to  the  court’s  former  decision  the  opinion 


HOURS  OF  LABOR— WOMEN 


309 

contrasts  the  law  of  1893  with  that  of  1909  in  two 
particulars. 

(1)  There  is  nothing  in  the  title  of  the  act  of  1893,  or  in  the 
act  itself,  which  indicates  or  suggests  that  the  act  was  passed 
for  the  purpose  of  promoting  the  health  of  women,  except,  as 
might  be  inferred  from  the  provisions  of  section  5,  that  it 
might  be  conducive  to  the  health  of  women  to  prohibit  them 
from  working  more  than  eight  hours  in  any  one  day,  while  the 
act  of  1909  expressly  provides  in  its  title  that  the  limitation 
upon  the  number  of  hours  which  women  shall  be  required  or 
permitted  to  work  in  mechanical  establishments  or  factories  or 
laundries  is  passed  with  the  view  “  to  safeguard  the  health 
of  such  employees.” 

(2)  The  act  of  1893  provides  for  an  eight-hour  day,  while 
the  act  of  1909  provides  for  a  ten-hour  day  in  which  women 
shall  be  permitted  to  work  in  mechanical  establishments  or 
factories  or  laundries.  Can  it  be  said  that,  if  the  limitation 
upon  the  number  of  hours  which  women  were  permitted  to 
work  in  the  designated  callings  in  the  act  of  1893  had  been 
fixed  at  ten  hours  instead  of  eight  hours,  the  court  would  have 
held  the  act  unconstitutional  as  an  unreasonable  exercise  of 
the  police  power  of  the  state  or  that  the  act  would  have  been 
held  obnoxious  to  the  constitution  as  special  or  class  legisla¬ 
tion?  We  do  not  think  it  can  be  so  said,  as  there  is  through¬ 
out  the  opinion  a  veiled  suggestion  which  indicates  that  it  was 
the  opinion  of  the  court  that  the  limitation  of  the  right  to  work 
longer  than  eight  hours  was  an  unreasonable  limitation  upon 
the  right  to  contract,  while  the  right  to  contract  for  a  longer 
day,  at  least  under  some  circumstances,  might  be  a  valid  limi¬ 
tation  upon  the  right  to  contract. 

Reduced  to  their  lowest  terms,  the  opposing  views  ex¬ 
pressed  in  the  decisions  that  have  been  cited  may  be  set  off 
against  each  other  in  the  following  words: 

( 1 )  Women  are  to  be  regarded  as  citizens  in  precisely  the 
same  sense  as  men.  All  rights  of  citizenship  expressed  or 


3IQ 


AMERICAN  COURTS  IN  LABOR  CASES 


implied  in  the  constitution  and  laws  are  to  be  maintained 
regardless  of  sex.  Freedom  of  contract  is  implied  in  the 
guaranty  of  life,  liberty  and  property,  and  the  labor  con¬ 
tract  is  to  be  treated  like  other  contracts.  The  police  power 
cannot  be  construed  as  covering  such  cases. 

(2)  Women  are  citizens,  but  not  in  precisely  the  same 
sense  as  men.  Difference  of  sex  is  a  sufficient  justification 
for  making  a  distinction  in  the  maintenance  of  the  constitu¬ 
tional  rights  of  citizens.  This  is  based  on  scientific  author¬ 
ity.  Freedom  of  contract,  though  derived  from  the  guar¬ 
anty  of  life,  liberty  and  property,  has  not  the  same  sanctity. 
Under  the  police  power  freedom  of  contract  may  be  re¬ 
stricted.  That  power  may  be  so  construed  as  to  include 
not  only  the  welfare  of  the  community  now  living,  but  also 
the  welfare  of  the  community  yet  unborn  and  its  right  to 
a  good  birth. 

The  increasing  number  of  states  that  are  enacting  legis¬ 
lation  protecting  women  makes  it  very  probable  that  all  our 
courts  will  yet  be  called  upon  to  elect  between  these  two 
positions.  It  is  hardly  possible  that  anything  new  can  be 
said.  The  two  principles  stand  in  clear  contrast.  The 
present  indications  are  that  the  decisions,  in  the  absence  of 
complicating  technicalities,  will  follow  those  of  the  United 
States  supreme  court  and  of  the  other  courts  that  have 
adopted  the  same  position. 


CHAPTER  XVIII 


Hours  of  Labor — Bakers 

Among  the  cases  involving  the  question  of  the  constitu¬ 
tionality  of  laws  restricting  the  hours  of  labor,  none  have 
attracted  more  attention  than  those  concerning  the  bakers. 
At  the  time  when  these  decisions  were  handed  down,  popu¬ 
lar  interest  in  the  subject  was  keen.  The  press  of  the  coun¬ 
try  took  up  the  discussion  and  the  public  was  fully  in¬ 
formed  in  regard  to  the  views  expressed.  Although  the 
cases  are  thus  so  generally  known  it  is  necessary  in  order  to 
set  forth  accurately  the  attitude  of  the  courts  to  include 
them  in  our  discussion. 

In  response  to  a  sentiment  aroused  by  an  investigation  and 
report  upon  the  conditions  in  city  bake-shops  the  legislature 
of  New  York  enacted  a  law  fixing  standards  which  must 
be  met  in  all  the  bakery  and  confectionery  establishments 
in  the  state.  These  standards  were  set  forth  in  consider¬ 
able  detail,  and  as  an  addition  to  them,  another  section  of 
the  law  established  a  ten-hour  day  as  a  maximum  for  all 
bakers.  The  law  was  challenged  in  the  courts  of  the  state 
and  the  case  carried  up  to  the  court  of  appeals  and  from 
it  to  the  United  States  supreme  court.  The  outcome  in 
the  state  court  was  that  the  law  was  held  valid.  In  the 
supreme  court  of  the  United  States  it  was  finally  declared 
unconstitutional.  A  count  of  the  judges  of  the  various 
courts  which  passed  upon  the  case  shows  that  the  total 
number  was  twenty-two.  Of  these  twelve  cast  their  vote 
in  favor  of  the  validity  of  the  law.  In  the  final  hearing  by 


312 


AMERICAN  COURTS  IN  LABOR  CASES 


the  United  States  supreme  court  the  decision  was  carried 
by  a  majority  of  one  vote  only.  The  closeness  of  the  de¬ 
cision  indicates  how  near  to  the  border  line  the  principles 
involved  really  were.  In  the  New  York  court  of  appeals 
two  opinions  were  written  concurring  with  the  opinion  of 
the  court  and  two  dissenting  from  it.  In  the  United  States 
supreme  court  two  dissenting  opinions  were  written.  It 
will  not  be  necessary  to  follow  each  of  these  eight  opinions 
through  by  itself,  nor  to  keep  prevailing  and  dissenting 
opinions  separate,  as  the  dissenting  view  of  the  New  York 
court  was  in  the  main  the  prevailing  view  of  the  federal 
court.  It  is  the  difference  in  attitude  and  in  importance 
attached  to  arguments  that  is  of  chief  interest  here. 

The  first  argument  in  support  of  the  validity  of  the  law 
was  urged  by  Chief  Justice  Parker  and  was  very  general 
in  its  scope.  Discussing  the  Fourteenth  Amendment  and 
its  relation  to  the  law  in  question  the  Justice  quotes  an  ex¬ 
tract  from  the  federal  supreme  court  in  another  case.  The 
constitution  of  the  United  States 

was  made  for  an  undefined  and  expanding  future,  and  for  a 
people  gathered  and  to  be  gathered  from  many  nations  and  of 
many  tongues.  .  .  .  We  shall  expect  that  the  new  and  various 
experiences  of  our  own  situation  and  system  will  mould  and 
shape  it  into  new  and  not  less  useful  forms.  .  .  .  While  the 
cardinal  principles  of  justice  are  immutable,  the  methods  by 
which  justice  is  administered  are  subject  to  constant  fluctua¬ 
tion,  and  that  the  Constitution  of  the  United  States,  which  is 
necessarily  and  to  a  large  extent  inflexible,  and  exceedingly 
difficult  of  amendment,  should  not  be  so  construed  as  to  de¬ 
prive  the  states  of  the  power  to  so  amend  their  laws  as  to 
make  them  conform  to  the  wishes  of  the  citizens  as  they  may 
deem  best  for  the  public  welfare  without  bringing  them  into 
conflict  with  the  supreme  law  of  the  land. 

This  view  Chief  Justice  Parker  characterizes  as  a  “  broad 


HOURS  OF  LABOR— BAKERS 


313 


minclecl  view,”  and  insists  that  it  should  be  followed  by  the 
state  courts  whenever  called  upon  to  consider  the  con¬ 
stitutionality  of  a  measure.  In  somewhat  the  same  mind 
Justice  Holmes  expresses  himself. 

A  constitution  is  not  intended  to  embody  a  particular  eco¬ 
nomic  theory,  whether  of  paternalism  and  the  organic  relation 
of  the  citizen  to  the  state  or  of  laissez  faire.  It  is  made  for 
people  of  fundamentally  different  views,  and  the  accident  of 
our  finding  certain  opinions  natural  and  familiar,  or  novel, 
and  even  shocking,  ought  not  to  conclude  our  judgment  upon 
the  question  whether  statutes  embodying  them  conflict  with 
the  Constitution  of  the  United  States. 

Entering  upon  the  consideration  of  the  needs  of  such 
legislation,  Justice  Parker  refers  to  the  changed  conditions 
of  the  present  and  their  effect  upon  the  manner  of  pre¬ 
paring  food.  The  public  generally  are  concerned  in  “  hav¬ 
ing  bakers’  and  confectioners’  establishments  cleanly  and 
wholesome  in  this  day  of  appreciation  of,  and  apprehension 
on  account  of,  microbes,  which  cause  disease  and  death.” 
Formerly  baking  was  done  in  the  family.  Now  “  in  a 
large  percentage  of  the  houses  in  cities  and  villages  the 
baker  is  relied  on  to  a  large  extent  to  furnish  bread,  biscuits, 
cake,  and  pie,  as  well  as  confectionery.”  “  Indeed,”  con¬ 
tinues  the  opinion  of  this  judge,  “  it  can  be  safely  said  that 
the  family  of  today  is  more  dependent  upon  the  baker  for  the 
necessaries  of  life  than  upon  any  other  source  of  supply.” 
Such  a  change,  then,  becomes  sufficient  ground  for  justifica¬ 
tion  of  such  an  act  as  an  exercise  of  the  police  power.  Cer¬ 
tainly  this  is  true  of  some  of  the  features  of  the  law.  Pro¬ 
hibiting  the  use  of  cellars  for  bakeries  unless  certain  pre¬ 
scribed  sanitary  precautions  are  taken,  providing  that  floors, 
ceilings  and  side  walls  shall  be  of  such  material  as  to  be 
readily  cleaned,  providing  for  keeping  flour  and  meal  in 


AMERICAN  COURTS  IN  LABOR  CASES 

airy  rooms, — such  provisions  are  clearly  for  the 
purpose  of  protecting  “  the  public  from  the  use  of  the  food 
made  dangerous  by  the  germs  that  thrive  in  darkness  and 
uncleanness.''  If  this  is  not  doubted, 

I 

why  should  any  one  question  the  object  of  the  legislature  in 
providing  in  the  same  article,  and  as  a  part  of  the  scheme,  that 
no  employee  shall  be  required  or  permitted  to  work  ”  in 
such  an  establishment  “  more  than  sixty  hours  in  any  one 
week/'  an  average  of  ten  hours  for  each  working  day.  It  is 
but  reasonable  to  assume  from  this  statute  as  a  whole  that  the 
legislature  had  in  mind  that  the  health  and  cleanliness  of  the 
workers,  as  well  as  the  cleanliness  of  the  workrooms,  was  of 
the  utmost  importance,  and  that  a  man  is  more  likely  to  be 
careful  and  cleanly  when  well,  and  not  overworked,  than  when 
exhausted  by  fatigue,  which  makes  for  careless  and  slovenly 
habits,  and  tends  to  dirt  and  disease.  If  there  is  opportunity 
— and  who  can  doubt  it? — for  this  view,  then  the  legislature 
had  the  power  to  enact  as  it  did,  and  the  courts  are  bound  to 
sustain  its  action  as  justified  by  the  police  power,  as  we  see 
from  the  authorities  referred  to  earlier  in  the  opinion. 

The  reading  of  the  statute  convinces  Justice  Parker  that 
the  purpose  of  the  legislature  was  to  benefit  the  public.  For 
that  reason  he  is  satisfied  to  find  that  its  action  is  within 
the  police  power  under  the  authority  of  both  the  federal  and 
the  state  courts. 

Justice  Gray’s  opinion  emphasized  still  further  the  con¬ 
nection  between  the  wholesomeness  of  the  product  and  the 
conditions  of  its  preparation. 

In  this  law,  which  restricts  the  working  hours  of  employees 
in  bakery  and  confectionery  establishments,  I  think  we  may 
fairly  perceive  a  statutory  regulation  reasonably  promotive 
of  the  public  health,  because  compelling  the  master  of  such  an 
establishment  to  conduct  it  in  a  manner  the  least  capable  of 


3H 

dry  and 


HOURS  OF  LABOR-BAKERS 


315 


affecting  his  product  prejudicially.  We  may,  not  unreason¬ 
ably,  assume  that  an  employee  may  work  too  long  for  his 
health  under  the  conditions,  and  that  an  impaired  vitality  and 
the  possible  development  of  organic  disease  may  be  the  result. 
If,  to  obviate  the  possible  consequences  to  the  consumer  of  the 
food  manufactured,  the  legislature  determines  to  interfere  by 
limiting,  among  other  regulations,  the  hours  of  the  workman, 
I  do  not  think  we  should  hold  the  interference  to  be  without 
reason. 

The  next  consideration  of  weight  in  the  minds  of  the 
judges  was  the  danger  to  health  on  the  part  of  those  en¬ 
gaged  in  bakeshop  work.  Here  is  shown  evidence  that 
medical  authorities  were  consulted  and  their  conclusions 
adopted.  Work  in  bakers’  or  confectioners’  establishments 
is  classed  by  such  authorities  with  potters,  stonecutters,  file 
grinders,  and  other  workers  “  whose  occupation  necessitates 
the  inhalation  of  dust  particles,  and  hence  predisposes  its 
members  to  consumption.”  Even  if  other  evidence  in  sup¬ 
port  of  this  legislation  were  wholly  wanting,  Judge  Parker 
declares, 

the  published  medical  opinions  and  vital  statistics  bearing 
upon  that  subject  standing  alone  fully  justify  the  section  under 
review  as  one  to  protect  the  health  of  the  employees  in  such 
establishments,  and  it  is  the  duty  of  this  court  to  assume  that 
the  section  was  framed  not  only  in  the  light  of,  but  also  with 
full  appreciation  of  the  force  of  the  medical  authority  bearing 
upon,  the  subject — authority  which  reasonably  challenges  the 
attention  and  stimulates  the  helpfulness  of  the  philanthropist. 

Judge  Vann  attaches  such  great  importance  to  the  effect 
of  this  employment  upon  the  health  of  those  engaged  in  it 
that  he  was  of  opinion  that  unless  the  regulation  could  be 
sustained  upon  such  grounds  it  could  not  be  sustained  at  all. 
He  says : 


AMERICAN  COURTS  IN  LABOR  CASES 


316 

If  such  an  occupation  is  unhealthy,  the  legislature  has  the 
right  to  prohibit  employers  from  requiring  or  permitting  their 
employees  to  spend  more  than  a  specified  number  of  hours 
per  day  or  week  in  the  work,  because  such  a  command  would 
be  in  the  interest  of  the  public  health,  and  would  promote  the 
general  welfare. 

Upon  consulting  these  authorities  the  Judge  finds  that 
“  bakers  and  confectioners,  who,  during  working  hours, 
constantly  breathe  air  filled  with  the  finest  dust  from  flour 
and  sugar  have  a  tendency  to  consumption,  the  most  terrible 
scourge  known  to  modern  civilization,  and  resulting  in  more 
deaths  than  any  other  disease.”  To  support  this  conclusion 
there  are  inserted  in  the  opinion  quotations  from  a  variety 
of  sources  to  show  that  the  occupation  is  a  dangerous  one. 
This  investigation  leads  the  Judge  to  express  his  conclusion 
as  follows : 

While  the  mortality  among  those  who  breathe  air  filled 
with  minute  particles  of  flour  is  less  than  among  those  who 
work  in  stone,  metal,  or  clay,  still  it  seems  to  be  demonstrated 
that  it  is  greater  than  in  avocations  generally.  The  dust-laden 
air  in  the  baker’s  or  confectioner’s  establishment  is  more 
benign  and  less  liable  to  irritate  than  particles  of  stone  or 
metal,  hence,  while  bakers  are  classified  with  potters,  stone¬ 
masons,  file  grinders,  etc.,  still  they  are  regarded  as  less  liable 
to  pulmonary  disease  than  other  members  of  the  class.  The 
evidence,  while  not  uniform,  leads  to  the  conclusion  that  the 
occupation  of  a  baker  or  confectioner  is  unhealthy,  and  tends 
to  result  in  diseases  of  the  respiratory  organs.  ...  So  I 
think  an  act  is  valid  which  provides  that  in  an  employment 
which  the  legislature  deems,  and  which  is  in  fact,  to  some  ex¬ 
tent  detrimental  to  health,  no  person,  regardless  of  age  or  sex, 
shall  be  permitted  or  required  to  labor  more  than  a  certain 
number  of  hours  per  day  or  week.  Such  legislation,  under 
such  circumstances,  is  a  health  law,  and  is  a  valid  exercise 
of  the  police  power. 


HOURS  OF  LABOR— BAKERS 


317 

The  opinion  which  the  majority  of  the  New  York  court 
reaches  is  that 

from  an  examination  of  the  statute  in  the  light  of  the  authori¬ 
ties  cited,  [it  follows]  that  the  purpose  of  article  8,  and  every 
part  of  it,  including  the  provision  in  question,  is  to  benefit  the 
public;  that  it  has  a  just  and  reasonable  relation  to  the  public 
welfare,  and  hence  is  within  the  police  power  possessed  by  the 
legislature. 

Justice  Harlan  was  of  the  opinion  that  the  legislation  in 
question  had  been  enacted  as  expressing  the  belief  of  the 
people  of  New  York  that  it  was  wise  and  necessary.  The 
only  question  for  the  federal  court  then  was  “  whether  the 
means  devised  by  the  state  are  germane  to  an  end  which 
may  be  lawfully  accomplished  and  have  a  real  or  substan¬ 
tial  relation  to  the  protection  of  health,  as  involved  in  the 
daily  work  of  the  persons,  male  or  female,  engaged  in 
bakery  and  confectionery  establishments.”  He  was  not 
willing  to  admit  that  the  statute  “  has  no  appropriate  or 
direct  connection  with  that  protection  to  health  which  each 
state  owes  to  her  citizens or  that  it  “  is  not  promotive  of 
the  health  of  the  employees  in  question or  that  “  the 
regulation  prescribed  by  the  state  is  utterly  unreasonable  and 
extravagant  or  wholly  arbitrary;”  or  that  it  is  “beyond 
question,  a  plain,  palpable  invasion  of  rights  secured  by  the 
fundamental  law.”  He  was  of  opinion  that  in  bakery  and 
confectionery  establishments  “  as  all  know,  the  air  con¬ 
stantly  breathed  by  workmen  is  not  as  pure  and  healthful 
as  that  to  be  found  in  some  other  establishments  or  out  of 
doors.”  This  opinion  he  supports  by  quotations  from 
various  sources. 

The  entire  question  of  fixing  the  hours  of  labor  is  a  dif¬ 
ficult  one,  urges  the  Justice,  one  that  has  been  “  for  a  long 
period,  and  is  yet,  a  subject  of  serious  consideration  among 


AMERICAN  COURTS  IN  LABOR  CASES 


318 

civilized  peoples,  and  by  those  having  special  knowledge  of 
the  laws  of  health.”  It  is  probable,  he  urges,  that  a  law 
prohibiting  more  than  eighteen  hours’  work  a  day  in  bakeries 
would  not  raise  any  question  of  legislative  authority.  The 
present  law  fixes  ten  hours,  and  this  “  may  be  said  to  occupy 
a  middle  ground  in  respect  of  the  hours  of  labor.”  Yet 
the  best  course  for  the  state  to  pursue  in  connection  with 
such  regulations  need  not  be  determined  with  absolute 
certainty.  Interference  with  industrial  freedom  always 
opens  debatable  ground. 

It  is  enough  for  the  determination  of  this  case,  and  it  is 
enough  for  this  court  to  know,  that  the  question  is  one  about 
which  there  is  room  for  debate  and  for  an  honest  difference 
of  opinion.  There  are  many  reasons  of  a  weighty,  substantial 
character,  based  upon  the  experience  of  mankind,  in  support 
of  the  theory  that,  all  things  considered,  more  than  ten  hours’ 
steady  work  each  day,  from  week  to  week,  in  a  bakery  or  con¬ 
fectionery  establishment,  may  endanger  the  health  and  shorten 
the  lives  of  the  workmen,  thereby  diminishing  their  physical 
and  mental  capacity  to  serve  the  state  and  to  provide  for  those 
dependent  upon  them. 

Turning  to  the  expression  of  the  views  upon  which  the 
opposite  opinion  is  based,  it  is  found  that  here  again  several 
considerations  were  important.  The  one  of  perhaps  great¬ 
est  weight  was  expressed  by  Justice  Peckham  in  writing 
the  prevailing  opinion  of  the  federal  court. 

The  mandate  of  the  statute  that  “  no  employee  shall  be  re¬ 
quired  or  permitted  to  work  ”  is  the  substantial  equivalent  of 
an  enactment  that  “  no  employee  shall  contract  or  agree  to 
work  ”  more  than  ten  hours  per  day;  and,  as  there  is  no  pro¬ 
vision  for  special  emergencies,  the  statute  is  mandatory  in 
all  cases.  It  is  not  an  act  merely  fixing  the  number  of  hours 
which  shall  constitute  a  legal  day’s  work,  but  an  absolute 


I 


HOURS  OF  LABOR— BAKERS  319 

prohibition  upon  the  employer  permitting,  under  any  circum¬ 
stances,  more  than  ten  hours’  work  to  be  done  in  his  establish¬ 
ment.  The  employee  may  desire  to  earn  the  extra  money 
which  would  arise  from  his  working  more  than  the  prescribed 
time,  but  this  statute  forbids  the  employer  from  permitting 
the  employee  to  earn  it. 

The  statute  necessarily  interferes  with  the  right  of  con¬ 
tract  between  the  employer  and  employees,  concerning  the  num¬ 
ber  of  hours  in  which  the  latter  may  labor  in  the  bakery  of 
the  employer.  The  general  right  to  make  a  contract  in  relation 
to  his  business  is  part  of  the  liberty  of  the  individual  protected 
by  the  14th  Amendment  of  the  Federal  Constitution.  .  .  . 

The  question  whether  this  act  is  valid  as  a  labor  law,  pure 
and  simple,  may  be  dismissed  in  a  few  words.  There  is  no 
reasonable  ground  for  interfering  with  the  liberty  of  person 
or  the  right  of  free  contract,  by  determining  the  hours  of 
labor,  in  the  occupation  of  a  baker.  There  is  no  contention 
that  bakers  as  a  class  are  not  equal  in  intelligence  and  capacity 
to  men  in  other  trades  or  manual  occupations,  or  that  they  are 
not  able  to  assert  their  rights  and  care  for  themselves  without 
the  protecting  arm  of  the  state,  interfering  with  their  inde¬ 
pendence  of  judgment  and  of  action.  They  are  in  no  sense 
wards  of  the  state.  Viewed  in  the  light  of  a  purely  labor  law, 
with  no  reference  whatever  to  the  question  of  health,  we  think 
that  a  law  like  the  one  before  us  involves  neither  the  safety, 
the  morals,  nor  the  welfare  of  the  public,  and  that  the  interest 
of  the  public  is  not  in  the  slightest  degree  affected  by  such 
an  act.  .  .  . 

We  think  the  limit  of  the  police  power  has  been  reached  and 
passed  in  this  case.  There  is,  in  our  judgment,  no  reasonable 
foundation  for  holding  this  to  be  necessary  or  appropriate  as  a 
health  law  to  safeguard  the  public  health,  or  the  health  of  the 
individuals  who  are  following  the  trade  of  a  baker.  If  this 
statute  be  valid,  and  if,  therefore,  a  proper  case  is  made  out 
in  which  to  deny  the  right  of  an  individual,  sui  juris ,  as  em¬ 
ployer  or  employee,  to  make  contracts  for  the  labor  of  the 
latter  under  the  protection  of  the  provisions  of  the  Federal 


320 


AMERICAN  COURTS  IN  LABOR  CASES 


Constitution,  there  would  seem  to  be  no  length  to  which  legis¬ 
lation  of  this  nature  might  not  go.  .  .  . 

We  think  that  there  can  be  no  fair  doubt  that  the  trade  of  a 
baker,  in  and  of  itself,  is  not  an  unhealthy  one  to  that  degree 
which  would  authorize  the  legislature  to  interfere  with  the 
right  to  labor,  and  with  the  right  of  free  contract  on  the  part 
of  the  individual,  either  as  employer  or  employee.  In  looking 
through  statistics  regarding  all  trades  and  occupations,  it  may 
be  true  that  the  trade  of  a  baker  does  not  appear  to  be  as 
healthy  as  some  other  trades,  and  is  also  vastly  more  healthy 
than  still  others.  To  the  common  understanding  the  trade  of 
a  baker  has  never  been  regarded  as  an  unhealthy  one.  Very 
likely  physicians  would  not  recommend  the  exercise  of  that  or 
of  any  other  trade  as  a  remedy  for  ill  health.  Some  occupa¬ 
tions  are  more  healthy  than  others,  but  we  think  there  are 
none  which  might  not  come  under  the  power  of  the  legislature 
to  supervise  and  control  the  hours  of  working  therein,  if  the 
mere  fact  that  the  occupation  is  not  absolutely  and  perfectly 
healthy  is  to  confer  that  right  upon  the  leigslative  department 
of  the  government.  It  might  be  safely  affirmed  that  almost  all 
occupations  more  or  less  affect  the  health.  There  must  be 
more  than  the  mere  fact  of  the  possible  existence  of  some 
small  amount  of  unhealthiness  to  warrant  legislative  interfer¬ 
ence  with  liberty.  It  is  unfortunately  true  that  labor,  even  in 
any  department,  may  possibly  carry  with  it  the  seeds  of  un¬ 
healthiness.  But  are  we  all,  on  that  account,  at  the  mercy  of 
legislative  majorities?  .  .  .  No  trade,  no  occupation,  no  mode 
of  earning  one’s  living,  could  escape  this  all-pervading  power, 
and  the  acts  of  the  legislature  in  limiting  the  hours  of  labor  in 
all  employments  would  be  valid,  although  such  limitation  might 
seriously  cripple  the  ability  of  the  laborer  to  support  himself 
and  his  family.  .  .  . 

It  is  also  urged,  pursuing  the  same  line  of  argument,  that 
it  is  to  the  interest  of  the  state  that  its  population  should  be 
strong  and  robust,  and  therefore  any  legislation  which  may  be 
said  to  tend  to  make  people  healthy  must  be  valid  as  health 
laws,  enacted  under  the  police  power.  If  this  be  a  valid  ar- 


HOURS  OF  LABOR— BAKERS 


32 1 


gument  and  a  justification  for  this  kind  of  legislation,  it  fol¬ 
lows  that  the  protection  of  the  Federal  Constitution  from 
undue  interference  with  liberty  of  person  and  freedom  of  con¬ 
tract  is  visionary,  wherever  the  law  is  sought  to  be  justified 
as  a  valid  exercise  of  the  police  power.  Scarcely  any  law 
but  might  find  shelter  under  such  assumptions,  and  conduct, 
properly  so  called,  as  well  as  contract,  would  come  under  the 
restrictive  sway  of  the  legislature.  Not  only  the  hours  of  em¬ 
ployees,  but  the  hours  of  employers,  could  be  regulated,  and 
doctors,  lawyers,  scientists,  all  professional  men,  as  well  as 
athletes  and  artisans,  could  be  forbidden  to  fatigue  their  brains 
and  bodies  by  prolonged  hours  of  exercise,  lest  the  fighting 
strength  of  the  state  be  impaired.  We  mention  these  extreme 
cases  because  the  contention  is  extreme.  We  do  not  believe 
in  the  soundness  of  the  views  which  uphold  this  law.  .  .  .  The 
act  is  not,  within  any  fair  meaning  of  the  term,  a  health  law, 
but  is  an  illegal  interference  with  the  rights  of  individuals, 
both  employers  and  employees,  to  make  contracts  regarding 
labor  upon  such  terms  as  they  may  think  best,  or  which  they 
may  agree  upon  with  the  other  parties  to  such  contracts.  Sta¬ 
tutes  of  the  nature  of  that  under  review,  limiting  the  hours 
in  which  grown  and  intelligent  men  may  labor  to  earn  their 
living,  are  mere  meddlesome  interferences  with  the  rights  of 
the  individual,  and  they  are  not  saved  from  condemnation  by 
the  claim  that  they  are  passed  in  the  exercise  of  the  police 
power  and  upon  the  subject  of  the  health  of  the  individual 
whose  rights  are  interfered  with,  unless  there  be  some  fair 
ground,  reasonable  in  and  of  itself,  to  say  that  there  is  ma¬ 
terial  danger  to  the  public  health,  or  to  the  health  of  the  em¬ 
ployees,  if  the  hours  of  labor  are  not  curtailed.  If  this  be 
not  clearly  the  case,  the  individuals  whose  rights  are  thus  made 
the  subject  of  legislative  interference  are  under  the  protection 
of  the  Federal  Constitution  regarding  their  liberty  of  contract 
as  well  as  of  person ;  and  the  legislature  of  the  state  has  no 
power  to  limit  their  right  as  proposed  in  this  statute.  .  .  . 

Adding  to  all  these  requirements  a  prohibition  to  enter  into 
any  contract  of  labor  in  a  bakery  for  more  than  a  certain  num- 


322 


AMERICAN  COURTS  IN  LABOR  CASES 


ber  of  hours  a  week  is,  in  our  judgment,  so  wholly  beside 
the  matter  of  a  proper,  reasonable,  and  fair  provision  as  to 
run  counter  to  that  liberty  of  person  and  of  free  contract  pro¬ 
vided  for  in  the  Federal  Constitution.  .  .  . 

In  our  judgment  it  is  not  possible  in  fact  to  discover  the  con¬ 
nection  between  the  number  of  hours  a  baker  may  work  in  the 
bakery  and  the  healthful  quality  of  the  bread  made  by  the 
workmen.  The  connection,  if  any  exist,  is  too  shadowy  and 
thin  to  build  any  argument  for  the  interference  of  the  legis¬ 
lature.  If  the  man  works  ten  hours  a  day  it  is  all  right,  but 
if  ten  and  a  half  or  eleven,  his  health  is  in  danger  and  his 
bread  may  be  unhealthy,  and,  therefore,  he  shall  not  be  per¬ 
mitted  to  do  it.  This,  we  think,  is  unreasonable  and  entirely 
arbitrary.  .  .  . 

It  is  manifest  to  us  that  the  limitation  of  the  hours  of  labor 
as  provided  for  in  this  section  of  the  statute  under  which  the 
indictment  was  found,  and  the  plaintiff  in  error  convicted,  has 
no  such  direct  relation  to,  and  no  such  substantial  effect  upon, 
the  health  of  the  employee,  as  to  justify  us  in  regarding  the 
section  as  really  a  health  law.  It  seems  to  us  that  the  real  ob¬ 
ject  and  purpose  were  simply  to  regulate  the  hours  of  labor 
between  the  master  and  his  employee  (all  being  men,  sui 
juris)  in  a  private  business,  not  dangerous  in  any  degree  to 
morals,  or  in  any  real  and  substantial  degree  to  the  health 
of  the  employees.  Under  such  circumstances  the  freedom  of 
master  and  employee  to  contract  with  each  other  in  relation 
to  their  employment,  and  in  defining  the  same,  cannot  be  pro¬ 
hibited  or  interfered  with,  without  violating  the  Federal  Con¬ 
stitution. 

Two  other  opinions,  those  of  Judges  O’Brien  and  Bartlett, 
are  interesting  for  the  light  they  throw  upon  their  authors’ 
knowledge  of  present  industrial  conditions.  Judge  O’Brien 
alludes  to  the  antiquity  of  the  bakers’  vocation,  and  also  to 
its  universality.  It  is  a  process  found  in  every  home  in  the 
land,  as  well  as  in 


HOURS  OF  LABOR— BAKERS 


323 


places  called  bakeries,  where  bread  is  made  for  sale  to  the 
public.  It  has  never  been  supposed  that  it  was  a  trade  or  vo¬ 
cation  that  was  or  might  be  dangerous  to  health,  morals,  or 
good  order,  or  that  there  was  any  thing  about  it  to  justify 
legislation  restricting  the  right  of  the  master  and  servant  to 
make  their  own  contracts,  express  or  implied,  with  respect  to 
hours  of  work  or  the  terms  of  employment.  There  is  nothing 
in  the  record  before  us  from  which  it  can  be  inferred  that 
there  was  any  ground  for  the  passage  of  the  statute  as  a  police 
regulation  for  the  protection  of  health,  morals,  or  good  order, 
and  hence  it  cannot  be  upheld  as  an  exercise  of  the  police 
power.  It  is  a  plain  discrimination  against  a  limited  class  of 
people  who  happen  to  be  obliged  to  employ  labor  in  the  manu¬ 
facture  of  bread,  biscuit,  or  confectionery  in  those  places 
called  bakeries.  This  relatively  small  class  is  restricted  by 
the  statute  to  the  regulations  there  prescribed  with  respect 
to  the  hours  of  labor  by  their  employees,  and  is  prohibited 
from  agreeing  with  them  as  to  the  time  they  are  to  work, 
even  though  extra  pay  should  be  given  for  overwork — a  right 
which  the  law  gives  to  all  other  persons  employing  labor.  If 
the  legislature  can  do  all  this,  then  the  right  to  enact  what 
wages  the  servant  shall  receive  per  day  or  per  hour  must  nec¬ 
essarily  follow  as  an  inevitable  conclusion.  A  statute  fixing 
the  wages  of  the  servant  at  such  a  sum  as  to  enable  him  to 
live  more  comfortably  could  be  defended  as  a  health  law  by 
the  same  argument  and  authority  adduced  in  support  of  the 
section  of  the  present  law,  the  violation  of  which  is  the  only 
crime  charged. 

Judge  Bartlett  selects  one  of  the  extracts  from  the  au¬ 
thorities  cited  on  the  matter  of  health  and  finds  in  that  au¬ 
thority  that  the  breathing  of  air  filled  with  fine  particles 
that  come  from  grinding  grain  and  loaf  sugar  may  cause 
consumption.  But  evidence  is  not  found  by  the  Justice  in 
the  record  warranting  the  conclusion  that  bakers  in  New 
York  state  are  subject  to  any  such  peril, 


324 


AMERICAN  COURTS  IN  LABOR  CASES 


if  any  there  be,  as  might  result  from  grinding  the  articles 
they  use.  It  is  common  experience  that  the  baker,  like  the 
cooks  in  hotels,  restaurants,  and  private  families,  has  pro¬ 
vided  for  him  in  his  business  flour,  sugar,  and  the  other  ingre¬ 
dients  duly  prepared  for  immediate  use.  The  claim  that  the 
compounding  of  these  constituents,  so  prepared,  in  the  busi¬ 
ness  of  a  baker,  is  an  unhealthy  occupation,  will  surprise  the 
bakers  and  good  housewives  of  this  state.  The  grinding  of 
steel,  like  the  needle  grinding  of  Sheffield,  England,  and  of 
other  similar  materials  and  substances,  causing  clouds  of  im¬ 
palpable  dust,  is  not  to  be  confounded  with  the  avocation  of  the 
family  baker,  engaged  in  the  necessary  and  highly  appreciated 
labor  of  producing  bread,  pies,  cakes,  and  other  commodities 
more  calculated  to  cause  dyspepsia  in  the  consumer  than  con¬ 
sumption  in  the  manufacturer.  The  country  miller  of  fifty 
years  ago,  who  passed  a  long  and  happy  life  amid  the  hum  of 
machinery  and  the  grinding  process  of  the  upper  and  nether 
stones,  little  dreamed  of  a  coming  day  when  the  legislature,  in 
the  full  panoply  of  paternalism,  would  rescue  his  successor 
from  the  appalling  dangers  of  the  life  he  led  until  old  age 
summoned  him  to  retire. 


CHAPTER  XIX 


Hours  of  Labor — Barbers 

The  line  of  division  between  the  trades  that  should  and 
those  that  should  not  be  regulated  by  legislation  has  been 
difficult  to  draw.  If  any  trade  were  to  be  selected  as 
the  one  most  nearly  on  the  border  line,  it  would  be  that  of 
the  barber.  Legislation  applying  to  barbers  has  had  reference 
chiefly  to  the  keeping  of  barber  shops  open  on  Sunday. 
Concerning  such  laws  the  courts  in  the  several  states  have 
expressed  diverse  opinions.  Such  laws  have  been  passed  and 
have  led  to  judicial  decisions  in  the  courts  of  New  York, 
Georgia,  California,  Illinois,  and  in  the  United  States  supreme 
court — all  within  the  past  fifteen  years.  Other  state  courts 
have  also  passed  upon  such  legislation,  though  not  in  opin¬ 
ions  that  contain  any  new  views  of  importance.  In  the  states 
named  two  courts  took  an  attitude  favorable  to  the  prin¬ 
ciple  of  such  legislation  and  two  unfavorable.  The  United 
States  supreme  court  sided  with  the  former.  The  two 
opinions  which  are  based  upon  principles  hostile  to  this 
legislation  were  both  written  in  1896,  before  the  more  fav¬ 
orable  views  had  been  expressed.  The  California  court 
in  its  opinion  {ex  parte  Jentzsch)  emphasized  that  such 
legislation  could  not  be  regarded  favorably  “  from  a  re¬ 
ligious  standpoint.” 

Under  a  constitution  which  guarantees  to  all  equal  liberty 
of  religion  and  conscience,  any  law  which  forbids  an  act  not 
in  itself  contra  bonos  mores ,  because  that  act  is  repugnant  to 

325 


AMERICAN  COURTS  IN  LABOR  CASES 


326 

the  beliefs  of  one  religious  sect,  of  necessity  interferes  with 
the  liberty  of  those  who  hold  to  other  beliefs  or  to  none  at  all. 

Such  laws,  therefore,  must  be  viewed  as  civil  enactments. 
If  declared  valid  at  all,  they  must  be  upheld  as  a  proper 
exercise  of  the  police  power. 

Entering  more  fully  into  the  arguments,  Judge  Henshaw 
continues : 

Still  it  may  be  suggested  in  passing  that  our  government  was 
not  designed  to  be  paternal  in  form.  We  are  a  self-governing 
people,  and  our  just  pride  is  that  our  laws  are  made  by  us 
as  well  as  for  us.  Every  individual  citizen  is  to  be  allowed  so 
much  liberty  as  may  exist  without  impairment  of  the  equal 
rights  of  his  fellows.  Our  institutions  are  founded  upon  the 
conviction  that  we  are  not  only  capable  of  self-government 
as  a  community,  but,  what  is  the  logical  necessity,  that  we  are 
capable,  to  a  great  extent,  of  individual  self-government.  If 
this  conviction  shall  prove  ill  founded,  we  have  built  our  house 
upon  sand.  The  spirit  of  a  system  such  as  ours  is  therefore  at 
total  variance  with  that  which,  more  or  less  veiled,  still  shows 
in  the  paternalism  of  other  nations.  .  .  . 

In  brief,  we  give  to  the  individual  the  utmost  possible 
amount  of  personal  liberty,  and  with  that  guaranteed  him,  he 
is  treated  as  a  person  of  responsible  judgment,  not  as  a  child 
in  his  nonage,  and  is  left  free  to  work  out  his  destiny  as  im¬ 
pulse,  education,  training,  heredity,  and  environment  direct 
him.  So,  while  the  police  power  is  one  whose  proper  use 
makes  most  potently  for  good,  in  its  undefined  scope  and  in¬ 
ordinate  exercise  lurks  no  small  danger  to  the  republic,  for 
the  difficulty  which  is  experienced  in  defining  its  just  limits 
and  bounds  affords  a  temptation  to  the  legislature  to  encroach 
upon  the  rights  of  citizens  with  experimental  laws  none  the 
less  dangerous  because  well  meant.  We  think  the  act  under 
consideration  gives  plain  evidence  of  such  encroachment. 

The  laboring  barber,  engaged  in  a  most  respectable,  useful, 
and  cleanly  pursuit,  is  singled  out  from  the  thousands  of  his 


HOURS  OF  LABOR— BARBERS 


327 

fellows  in  other  employments,  and  told  that,  willy  nilly,  he 
shall  not  work  upon  holidays  and  Sundays  after  12  o’clock 
noon.  His  wishes,  tastes,  or  necessities  are  not  consulted. 
If  he  labors,  he  is  a  criminal.  Such  protection  to  labor,  carried 
a  little  further,  would  send  him  from  the  jail  to  the  poorhouse. 
How  comes  it  that  the  legislative  eye  was  so  keen  to  discern 
the  needs  of  the  oppressed  barber,  and  yet  was  blind  to  his 
toiling  brethren  in  other  vocations?  Steam  car  and  street  car 
operatives  toil  through  long  and  weary  Sunday  hours,  so  do 
mill  and  factory  hands.  There  is  no  Sunday  period  of  rest, 
and  no  protection  for  the  overworked  employees  of  our  daily 
papers.  Do  these  not  need  rest  and  protection?  The  bare 
suggestion  of  these  considerations  shows  the  injustice  and  ine¬ 
quality  of  this  law. 

The  Illinois  court  (Eden  v.  People)  came  to  the  same 
conclusion  as  that  reached  by  the  California  court,  though 
by  a  somewhat  different  process  of  reasoning.  Under  the 
laws  of  Illinois,  the  court  asserts,  every  citizen  is  left  per¬ 
fectly  free  to  labor  and  transact  business  on  Sunday,  or  re¬ 
frain  from  labor  and  business,  as  he  may  choose,  so  long 
as  he  does  not  disturb  the  peace  and  good  order  of  society. 
The  act  in  question  attempts  to  inaugurate  “a  radical  change 
in  the  law  as  to  a  class  of  the  laboring  element  of  the 
state,  the  barbers.”  The  relation  of  this  act  to  property 
right  is  explained  in  the  following  manner  by  Chief  Justice 
Craig. 

The  owner  of  a  place  who  carries  on  the  business  of  a 
barber  is  prohibited  from  doing  any  business  whatever  during 
one  day  in  the  week.  He  may  have  in  his  employ  a  dozen 
men,  and  yet  during  one  day  in  seven  he  is  deprived  of  their 
labor,  and  also  deprived  of  his  own  labor.  The  income  de¬ 
rived  from  his  place  and  his  own  labor  and  the  labor  of  his 
employees  is  his  property,  but  the  legislature  has  by  the  act 
taken  that  property  away  from  him.  The  journeyman  barber 


AMERICAN  COURTS  IN  LABOR  CASES 


328 

who  works  by  the  day  or  week  or  for  a  share  of  the  amount 
he  may  receive  from  customers  for  his  services  is  by  the  law 
denied  the  right  of  laboring  one  day  in  the  week.  He  may 
rely  solely  upon  his  labor  for  the  support  of  himself  and  fam¬ 
ily,  his  labor  may  be  the  only  property  that  he  possesses,  and 
yet  this  law  takes  that  property  away  from  him.  His  labor  is 
his  capital,  and  that  capital  is  all  the  property  he  owns.  Can 
a  law  which  takes  that  from  the  laborer  be  sustained?  The 
constitution  of  the  United  States  says  the  state  shall  not  de¬ 
prive  any  person  of  property  without  due  process  of  law,  and 
our  state  constitution  declares  the  same  thing. 

Due  process  of  law,  continues  the  opinion,  compre¬ 
hends  laws  that  are  general  public  laws,  “  binding  upon  all 
the  members  of  the  community,  under  all  circumstances ; 
and  not  partial  or  private  laws,  affecting  the  rights  of 
private  individuals  or  classes  of  individuals.”  The  law  in 
question  is  then  tested  by  this  formula.  It  does  not  affect 
merchants,  clerks,  restaurant  keepers  or  employees,  black¬ 
smiths,  those  engaged  in  clothing  houses,  livery  stables, 
street  car  lines,  or  in  fact  any  branch  of  business  except  that 
of  the  barber.  “  He  alone  is  required  to  close  his  place  of 
business.”  “  The  barber  is  thus  deprived  of  property  with¬ 
out  due  process  of  law,  in  direct  violation  of  the  constitu¬ 
tion  of  the  United  States  and  of  this  state.” 

The  opinion  then  refers  to  the  claim  that  this  legislation 
thus  dealing  with  the  barber,  this  discrimination  against 
that  calling  and  that  alone,  may  be  justified  as  an  act  with¬ 
in  the  police  power.  It  deals  with  this  argument  as  follows : 

It  will  not  and  cannot  be  claimed  that  the  law  in  question 
was  passed  as  a  sanitary  measure,  or  that  it  has  any  relation 
whatever  to  the  health  of  society.  As  has  been  heretofore 
seen,  as  a  general  rule  a  police  regulation  has  reference  to  the 
health,  comfort,  safety  and  welfare  of  society.  How,  it  may 
be  asked,  is  the  health,  the  comfort,  safety,  or  welfare  of 


HOURS  OF  LABOR— BARBERS 


329 


society  to  be  injuriously  affected  by  the  keeping  open  a  barber 
shop  on  Sunday?  It  is  a  matter  of  common  observation  that 
the  barber  business,  as  carried  on  in  this  state,  is  both  quiet 
and  orderly.  Indeed,  it  is  shown  by  the  evidence  incorpor¬ 
ated  in  the  record  that  the  barber  business,  as  conducted,  is 
quiet  and  orderly,  much  more  so  than  many  other  departments 
of  business.  In  view  of  the  nature  of  the  business  and  the 
manner  in  which  it  is  carried  on,  it  is  difficult  to  perceive  how 
the  rights  of  any  person  can  be  affected,  or  how  the  comfort 
or  welfare  of  society  can  be  disturbed.  If  the  act  was  one  cal¬ 
culated  to  promote  the  health,  comfort,  safety,  and  welfare 
of  society,  then  it  might  be  regarded  as  an  exercise  of  the 
police  power  of  the  state.  ...  If  the  public  welfare  of  the 
state  demands  that  all  business  and  all  labor  of  every  descrip¬ 
tion  except  work  of  necessity  and  charity  should  cease  on 
Sunday,  the  first  day  of  the  week,  and  that  day  shall  be  kept 
as  a  day  of  rest,  the  legislature  has  the  power  to  enact  a  law 
requiring  all  persons  to  refrain  from  their  ordinary  callings 
on  that  day  .  .  .  and  in  order  that  Sunday  may  be  kept  as  a 
day  of  rest  then  all  will  be  placed  on  a  perfect  equality,  and  no 
one  can  complain  of  an  unjust  discrimination.  But  when  the 
legislature  undertakes  to  single  out  one  class  of  labor,  harm¬ 
less  in  itself,  and  condemn  that,  and  that  alone,  it  transcends 
its  legitimate  powers  and  its  action  cannot  be  sustained. 

The  reasoning  followed  in  support  of  such  legislation 
may  be  shown  from  the  opinion  of  the  New  York  court  in 
People  v.  Havnor.  The  “  vital  question,”  declares  Judge 
Vann,  “  is  whether  the  real  purpose  of  the  statute  under 
consideration  has  a  reasonable  connection  with  the  public 
health,  welfare,  or  safety.”  To  the  court  the  object  of  the 
act  seemed  to  be  to  regulate  the  trade  of  the  barber  on 
Sunday.  This  regulation  obviously  had  no  reference  to 
forcing  the  observance  of  Sunday  as  a  holy  day  or  to  effect¬ 
ing  a  religious  end  in  any  way.  This  purpose  being  obvious, 
the  justification  for  it  is  found  on  two  grounds. 


330 


AMERICAN  COURTS  IN  LABOR  CASES 


(1)  The  peculiar  character  of  the  first  day  of  the  week, 
not  simply  on  account  of  the  obligations  of  religion,  but  as  a 
day  of  rest  and  recreation,  has  been  recognized  from  time 
out  of  mind  both  by  the  legislature  and  the  courts.  Statutes 
passed  upon  the  subject  while  we  were  a  colony  of  Great 
Britain,  as  well  as  under  the  various  constitutions  in  force 
since  our  organization  as  a  state,  have,  so  far  as  appears,  been 
uniformly  enforced  by  the  courts.  .  .  .  The  rule  is  believed 
to  be  general  throughout  the  Union,  although  not  generally 
enforced,  that  the  ordinary  business  of  life  shall  be  suspended 
on  Sunday,  in  order  that  thereby  the  physical  and  moral  well¬ 
being  of  the  people  may  be  advanced.  The  inconvenience  to 
some  is  not  regarded  as  an  argument  against  the  constitution¬ 
ality  of  the  statute,  as  that  is  an  incident  to  all  general  laws. 
.  .  .  While  works  of  charity  and  necessity  have  usually  been 
excepted  from  the  effect  of  laws  relating  to  the  Sabbath,  and 
sometimes,  also,  those  persons  who  keep  another  day  of  the 
week,  still  quiet  pursuits  have  not,  even  when  they  can  be 
carried  on  without  the  labor  of  others,  because  general  respect 
and  observance  of  the  day,  so  far  as  practicable,  have  been 
deemed  essential  to  the  interest  of  the  public,  including,  as 
a  part  thereof,  those  who  prefer  not  to  keep  the  day,  as  their 
health  and  morals  are  entitled  to  protection,  even  against  their 
will,  the  same  as  those  of  any  other  class  in  the  community. 
According  to  the  common  judgment  of  civilized  men,  public 
economy  requires,  for  sanitary  reasons,  a  day  of  general  rest 
from  labor,  and  the  day  naturally  selected  is  that  regarded  as 
sacred  by  the  greatest  number  of  citizens,  as  this  causes  the 
least  inconvenience  through  interference  with  business. 

(2)  It  is  to  the  interest  of  the  state  to  have  strong,  robust, 
healthy  citizens,  capable  of  self-support,  of  bearing  arms,  and 
of  adding  to  the  resources  of  the  country.  Laws  to  effect  this 
purpose,  by  protecting  the  citizen  from  overwork,  and  requir¬ 
ing  a  general  day  of  rest  to  restore  his  strength  and  preserve 
his  health,  have  an  obvious  connection  with  the  public  welfare. 
Independent  of  any  question  relating  to  morals  or  religion, 
the  physical  welfare  of  the  citizen  is  a  subject  of  such  primary 


HOURS  OF  LABOR— BARBERS 


331 


importance  to  the  state,  and  has  such  a  direct  relation  to  the 
general  good,  as  to  make  laws  tending  to  promote  that  object 
proper  under  the  police  power,  and  hence  valid  under  the  con¬ 
stitution,  which  “  presupposes  its  existence,  and  is  to  be  con¬ 
strued  with  reference  to  that  fact.”  .  .  .  The  statute  under 
discussion  tends  to  effect  this  result,  because  it  requires  per¬ 
sons,  engaged  in  a  kind  of  business  that  takes  many  hours  each 
day,  to  refrain  from  carrying  it  on  during  one  day  in  seven. 
This  affords  an  opportunity,  recurring  at  regular  intervals, 
for  rest,  needed  both  by  the  employer  and  the  employed,  and 
the  latter,  at  least,  may  not  have  the  power  to  observe  a  day 
of  rest  without  the  aid  of  legislation.  As  Mr.  Tiedeman  says, 
in  his  work  on  Police  Powers:  “  If  the  law  did  not  interfere, 
the  feverish,  intense  desire  to  acquire  wealth,  .  .  .  inciting  a 
relentless  rivalry  and  competition,  would  ultimately  prevent 
not  only  the  wage  earners,  but  likewise  the  capitalists  and  em¬ 
ployers  themselves,  from  yielding  to  the  warnings  of  nature, 
and  obeying  the  instinct  of  self-preservation,  by  resting  per¬ 
iodically  from  labor.”  As  barbers  generally  work  more  hours 
each  day  than  most  men,  the  legislature  may  well  have  con¬ 
cluded  that  legislation  was  necessary  for  the  protection  of  their 
health.  We  think  that  this  statute  was  intended  and  is  adapted 
to  promote  the  public  health,  and  thereby  to  serve  a  public 
purpose  of  the  utmost  importance,  by  promoting  the  ob¬ 
servance  of  Sunday  as  a  day  of  rest.  It  follows,  therefore, 
that  it  does  not  go  beyond  the  limits  of  legislative  power  by 
depriving  any  one  of  liberty  or  property  within  the  meaning 
of  the  constitution. 

To  this  line  of  reasoning,  the  United  States  supreme 
court  gave  its  assent  in  the  case  appealed  to  it  from  the 
Minnesota  court  (Petit  v.  State).  Chief  Justice  Fuller 
wrote  the  opinion,  in  which  he  cited  with  approval  a  pas¬ 
sage  written  by  Justice  Field  while  he  was  a  member  of  the 
California  court.  The  requirement  of  the  law,  says  Justice 
Field, 


332 


AMERICAN  COURTS  IN  LABOR  CASES 


is  a  cessation  from  labor.  In  its  enactment  the  legislature  has 
given  the  sanction  of  law  to  a  rule  of  conduct  which  the  entire 
civilized  world  recognizes  as  essential  to  the  physical  and 
moral  well-being  of  society.  Upon  no  subject  is  there  such  a 
concurrence  of  opinion,  among  philosophers,  moralists,  and 
statesmen  of  all  nations,  as  on  the  necessity  of  periodical  ces¬ 
sations  from  labor.  One  day  in  seven  is  the  rule,  founded 
in  experience,  and  sustained  by  science.  .  .  .  The  prohibition 
of  secular  business  on  Sunday  is  advocated  on  the  ground  that 
by  it  the  general  welfare  is  advanced,  labor  protected,  and  the 
moral  and  physical  well-being  of  society  promoted. 

Justice  Fuller  then  turns  to  the  opinion  that  had  been 
handed  down  by  the  Minnesota  supreme  court  and  cites  the 
following  extract : 

Courts  will  take  judicial  notice  of  the  fact  that,  in  view  of 
the  custom  to  keep  barber  shops  open  in  the  evening  as  well 
as  in  the  day,  the  employees  in  them  work  more,  and  during 
later,  hours  than  those  engaged  in  most  other  occupations,  and 
that  this  is  especially  true  on  Saturday  afternoons  and  even¬ 
ings  ;  also  that,  owing  to  the  habit  of  so  many  men  to  postpone 
getting  shaved  until  Sunday,  if  such  shops  were  to  be  per¬ 
mitted  to  be  kept  open  on  Sunday,  the  employees  would  ordi¬ 
narily  be  deprived  of  rest  during  half  of  that  day. 

In  view  of  all  these  facts  we  cannot  say  that  the  legislature 
has  exceeded  the  limits  of  its  legislative  police  power  in  de¬ 
claring  that,  as  a  matter  of  law,  keeping  barber  shops  open  on 
Sunday  is  not  a  work  of  necessity  or  charity,  while  as  to  all 
other  kinds  of  labor  they  have  left  that  question  to  be  deter¬ 
mined  as  one  of  fact. 

Commenting  upon  this  view,  the  Chief  Justice  adds  in 
closing : 

We  recognize  the  force  of  the  distinctions  suggested  and 
perceive  no  adequate  ground  for  interfering  with  the  wide 


HOURS  OF  LABOR— BARBERS 


333 


discretion  confessedly  necessarily  exercised  by  the  states  in 
these  matters,  by  holding  that  the  classification  was  so  pal¬ 
pably  arbitrary  as  to  bring  the  law  into  conflict  with  the  Fed¬ 
eral  Constitution. 


/ 


CHAPTER  XX 


Tenements 

The  regulation  of  sweat-shop  work  by  law  has  been 
greatly  affected  by  the  view  early  taken  by  the  New  York 
courts.  In  1885  an  effort  was  made  to  put  a  stop  to  sweat¬ 
ing  by  the  enactment  of  a  law  prohibiting  the  making  of 
cigars  and  other  tobacco  products  in  the  tenement  houses 
of  cities  of  the  first  class.  This  law  was  taken  to  the 
highest  court  of  the  state  and  a  decision  secured  adverse 
to  the  statute.  The  opinion  written  in  this  court  has  at¬ 
tracted  wide  attention  and  has  had  wide  influence  both  on 
courts  in  reaching  decisions  on  other  cases  and  on  legis¬ 
latures  in  framing  and  passing  laws  for  the  removal 
of  industrial  evils.  It  has  also  called  forth  from  sources 
both  varied  and  weighty  criticisms  as  vigorous  as  have 
been  offered  touching  any  decision  since  that  in  the  Dred 
Scott  case.  To  make  the  law  effective  it  was  found 
necessary  to  draw  it  up  in  a  specific  form  embodying  details 
that  would  make  both  its  meaning  and  its  application  clean 
The  act  was  designated  as  “  an  act  to  improve  the  public 
health  by  prohibiting  the  manufacture  of  cigars  and  pre¬ 
parations  of  tobacco  in  any  form  in  tenement  houses  in 
certain  cases,  and  regulating  the  use  of  tenement  houses  in 
certain  cases.”  To  make  the  enforcement  of  the  law 
possible,  it  was  deemed  necessary  to  state  expressly  that 
the  manufacture  was  prohibited  in  any  part  of  any  floor  of 
any  tenement  house  if  such  part  of  such  floor  was  occupied 
for  living  purposes.  A  tenement  house  was  defined  as  any 
334 


TENEMENTS 


335 


house  occupied  as  a  home  by  more  than  three  families  liv¬ 
ing  independently.  If  there  was  a  tobacco  store  on  the 
first  floor,  the  law  was  not  to  apply  to  that  entire  floor. 
The  law  visited  a  penalty  upon  any  person  found  guilty 
either  of  violating  or  of  causing  another  to  violate  the  act. 
Justice  Earl  wrote  the  opinion  of  the  court  and  there  was 
no  dissent. 

The  point  of  view  of  the  court  is  shown  in  its  answer 
to  a  question  asked  by  itself :  “  What  does  this  act  attempt 
to  do  ?”  Its  answer  is : 

In  form,  it  makes  it  a  crime  for  a  cigar-maker  in  New  York 
or  Brooklyn  ...  to  carry  on  a  perfectly  lawful  trade  in  his 
own  home.  Whether  he  owns  the  tenement  house  or  has 
hired  a  room  therein  for  the  purpose  of  prosecuting  his  trade, 
he  cannot  manufacture  therein  his  own  tobacco  into  cigars 
for  his  own  use  or  for  sale,  and  he  will  become  a  criminal  for 
doing  that  which  is  perfectly  lawful  outside  of  the  two  cities 
named — everywhere  else  so  far  as  we  are  able  to  learn  in  the 
whole  world. 

He  must  either  abandon  the  trade  by  which  he  earns  a  live¬ 
lihood  for  himself  and  family,  or,  if  able,  procure  a  room  else¬ 
where,  or  hire  himself  out  to  one  who  has  a  room  upon  such 
terms  as,  under  the  fierce  competition  of  trade  and  the  inex¬ 
orable  laws  of  supply  and  demand,  he  may  be  able  to  obtain 
from  his  employer.  He  may  choose  to  do  his  work  where  he 
can  have  the  supervision  of  his  family  and  their  help,  and  such 
choice  is  denied  him.  He  may  choose  to  work  for  himself 
rather  than  for  a  taskmaster,  and  he  is  left  without  freedom  of 
choice.  He  may  desire  the  advantage  of  cheap  production  in 
consequence  of  his  cheap  rent  and  family  help,  and  of  this  he 
is  deprived.  In  the  unceasing  struggle  for  success  and  exist¬ 
ence  which  pervades  all  societies  of  men,  he  may  be  deprived 
of  that  which  will  enable  him  to  maintain  his  hold,  and  to  sur¬ 
vive.  He  may  go  to  a  tenement  house,  and  finding  no  one 
living,  sleeping,  cooking  or  doing  any  household  work  upon 


AMERICAN  COURTS  IN  LABOR  CASES 


336 

one  of  the  floors,  hire  a  room  upon  such  floor  to  carry  on  his 
trade,  and  afterward  some  one  may  commence  to  sleep  or  to 
do  some  household  work  upon  such  floor,  even  without  his 
knowledge  and  he  at  once  becomes  a  criminal  in  consequence 
of  another’s  act.  He  may  go  to  a  tenement  house,  and  finding 
but  two  families  living  therein  independently,  hire  a  room,  and 
afterward  by  subdivision  of  the  families,  or  a  change  in  their 
mode  of  life,  or  in  some  other  way,  a  fourth  family  begins  to 
live  therein  independently,  and  thus  he  may  become  a  criminal 
without  the  knowledge,  or  possibly  the  means  of  knowledge 
that  he  was  violating  any  law.  It  is,  therefore,  plain  that  this 
law  interferes  with  the  profitable  and  free  use  of  his  prop¬ 
erty  by  the  owner  or  lessee  of  a  tenement  house  who  is  a  cigar- 
maker,  and  trammels  him  in  the  application  of  his  industry  and 
the  disposition  of  his  labor,  and  thus,  in  a  strictly  legitimate 
sense,  it  arbitrarily  deprives  him  of  his  property  and  of  some 
portion  of  his  personal  liberty.  .  .  . 

Property  may  be  destroyed,  or  its  value  may  be  annihilated. 
It  is  owned  and  kept  for  some  useful  purpose  and  it  has  no 
value  unless  it  can  be  used.  Its  capability  for  enjoyment  and 
adaptability  to  some  use  are  essential  characteristics  and  attri¬ 
butes  without  which  property  cannot  be  conceived,  and  hence 
any  law  which  destroys  it  or  its  value,  or  takes  away  any  of 
its  essential  attributes,  deprives  the  owner  of  his  property.  .  .  . 

If  the  legislature  has  the  power  under  the  constitution  to 
prohibit  the  prosecution  of  one  lawful  trade  in  a  tenement 
house,  then  it  may  prevent  the  prosecution  of  all  trades 
therein. 

The  law  further  infringes  upon  the  right  of  liberty.  To 
deprive  of  liberty  actual  imprisonment  is  not  necessary. 
One  may  be  deprived  of  liberty  in  other  ways. 

Liberty,  in  its  broad  sense  as  understood  in  this  country, 
means  the  right,  not  only  of  freedom  from  actual  servitude, 
imprisonment  or  restraint,  but  the  right  of  one  to  use  his  facul¬ 
ties  in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn 


TENEMENTS 


3  37 


his  livelihood  in  any  lawful  calling,  and  to  pursue  any  lawful 
trade  or  avocation.  All  laws  therefore  which  impair  or  tram¬ 
mel  these  rights,  which  limit  one  in  his  choice  of  a  trade  or 
profession,  or  confine  him  to  work  or  live  in  a  specified  local¬ 
ity,  or  exclude  him  from  his  own  house,  or  restrain  his  other¬ 
wise  lawful  movements  (except  as  such  laws  may  be  passed 
in  the  exercise  by  the  legislature  of  the  police  power,  which 
will  be  noticed  later),  are  infringements  upon  his  fundamental 
rights  of  liberty,  which  are  under  constitutional  protection. 

As  to  the  police  power,  the  court  agrees  that  it  is  very 
broad  and  comprehensive  and  may  be  used  in  the  interests 
of  public  health,  comfort,  safety  and  welfare.  Liberty  and 
property  may  be  regulated  by  it.  But  broad  as  this  power 
is,  it  is  not  limitless.  It  is  not  above  the  Constitution.  In 
its  exercise  “  the  legislature  must  respect  the  great  funda¬ 
mental  rights  guaranteed  by  the  Constitution.”  Otherwise 
there  would  be  no  limitation  at  all  upon  the  legislature,  and 
“  every  right  of  the  citizen  might  be  invaded  and  every 
constitutional  barrier  swept  away  ”  by  an  assumed  relation 
of  the  act  to  public  health,  welfare,  or  safety.  This  rela¬ 
tion  between  means  and  end  must  be  apparent. 

Personal  rights  and  private  property  cannot  be  arbitrarily 
invaded,  and  the  determination  of  the  legislature  is  not  final 
or  conclusive.  If  it  passes  an  act  ostensibly  for  the  public 
health,  and  thereby  destroys  or  takes  away  the  property  of  a 
citizen,  or  interferes  with  his  personal  liberty,  then  it  is  for 
the  courts  to  scrutinize  the  act  and  see  whether  it  really  re¬ 
lates  to  and  is  convenient  and  appropriate  to  promote  the 
public  health.  It  matters  not  that  the  legislature  may  in  the 
title  to  the  act,  or  in  its  body,  declare  that  it  is  intended  for 
the  improvement  of  the  public  health.  Such  a  declaration  does 
not  conclude  the  courts,  and  they  must  yet  determine  the  fact 
declared  and  enforce  the  supreme  law.  ...  It  may  be  diffi¬ 
cult  sometimes  to  determine  whether  a  use  is  public  or  private. 


AMERICAN  COURTS  IN  LABOR  CASES 


3  38 

Although  the  legislature  may  declare  it  to  be  public,  that  does 
not  necessarily  determine  its  character,  it  must  in  fact  be 
public,  and  if  it  be  not,  no  legislative  fiat  can  make  it  so,  and 
any  owner  of  property  attempted  to  be  taken  for  a  use  really 
private  can  invoke  the  aid  of  the  courts  to  protect  his  property 
rights  against  invasion.  .  .  .  These  citations  are  apt  to  show 
how  the  police  power  may  and  how  it  ought  not  to  be  exer¬ 
cised,  and  how  far  its  exercise  is  subject  to  judicial  inquiry. 

After  stating  these  principles  that  govern  the  exercise  of 
police  power,  the  application  is  made  to  the  law  itself. 
“  What  possible  relation,”  it  asks,  “  can  cigarmaking  in  any 
building  have  to  the  health  of  the  general  public?”  And 
again  “  If  the  legislature  had  in  mind  the  protection  of  the 
occupants  of  tenement  houses,  why  was  the  act  confined  in 
its  operation  to  the  two  cities  only?”  “  What  possible  re¬ 
lation  to  the  health  of  the  occupants  of  a  large  tenement 
house  could  cigarmaking  in  one  of  its  remote  rooms  have?” 
The  answers  to  these  questions  are  stated  so  clearly 
in  the  opinion  as  to  leave  no  doubt  of  the  view  that  was 
held.  The  law,  it  insists,  does  not  deal  with  tenement 
houses  as  such ;  it  does  not  regulate  their  population  nor  the 
method  of  their  construction.  It  deals  mainly  with  the 
preparation  of  tobacco  and  the  manufacture  of  cigars. 
“  Judicial  notice  ”  is  then  taken  of  the  “  nature  and  qualities 
of  tobacco.”  Here  is  set  forth  its  general  use  among  civil¬ 
ized  men,  and  the  extent  of  the  industry  by  which  it  is  pre¬ 
pared  for  the  market.  The  process  of  the  manufacture  is 
not  one  that  is  injurious  to  the  health  of  those  engaged  in 
it,  much  less  to  the  public  health.  These  matters  are  taken 
up  in  some  detail.  Following  this  more  general  consider¬ 
ation,  the  opinion  proceeds: 

To  justify  this  law  it  would  not  be  sufficient  that  the  use 
of  tobacco  may  be  injurious  to  some  persons,  or  that  its  man- 


TENEMENTS 


339 


ipulation  may  be  injurious  to  those  who  are  engaged  in  its 
preparation  and  manufacture;  but  it  would  have  to  be  in¬ 
jurious  to  the  public  health.  This  law  was  not  intended  to 
protect  the  health  of  those  engaged  in  cigar-making,  as  they 
are  allowed  to  manufacture  cigars  everywhere  except  in  the 
forbidden  tenement  houses.  It  cannot  be  perceived  how  the 
cigar-maker  is  to  be  improved  in  his  health  or  his  morals  by 
forcing  him  from  his  home  and  its  hallowed  associations  and 
beneficent  influences,  to  ply  his  trade  elsewhere.  It  was  not 
intended  to  protect  the  health  of  that  portion  of  the  public 
not  residing  in  the  forbidden  tenement  houses,  as  cigars  are 
allowed  to  be  manufactured  in  private  houses,  in  large  fac¬ 
tories,  and  shops  in  the  two  crowded  cities,  and  in  all  other 
parts  of  the  state.  What  possible  relation  can  cigar-making 
in  any  building  have  to  the  health  of  the  general  public?  Nor 
was  it  intended  to  improve  or  protect  the  health  of  the  oc¬ 
cupants  of  tenement  houses.  If  there  are  but  three  families  in 
the  tenement  house,  however  numerous  and  gregarious  their 
members  may  be,  the  manufacture  is  not  forbidden ;  and  it 
matters  not  how  large  the  number  of  occupants  may  be  if  they 
are  not  divided  into  more  than  three  families  living  and  cook¬ 
ing  independently.  If  a  store  is  kept  for  the  sale  of  cigars 
on  the  first  floor  of  one  of  these  houses,  and  thus  more  tobacco 
is  kept  there  than  otherwise  would  be,  and  the  baneful  influ¬ 
ence  of  tobacco,  if  any,  is  thus  increased,  the  floor,  however 
numerous  its  occupants,  or  the  occupants  of  the  house,  is 
exempt  from  the  operation  of  the  act.  What  possible  relation 
to  the  health  of  the  occupants  of  a  large  tenement  house  could 
cigar-making  in  one  of  its  remote  rooms  have?  If  the  legis¬ 
lature  had  in  mind  the  protection  of  the  occupants  of  tene¬ 
ment  houses,  why  was  the  act  confined  in  its  operation  to  the 
two  cities  only?  It  is  plain  that  this  is  not  a  health  law,  and 
that  it  has  no  relation  whatever  to  the  public  health.  Under 
the  guise  of  promoting  the  public  health  the  legislature  might 
as  well  have  banished  cigar-making  from  all  the  cities  of  the 
state,  or  confined  it  to  a  single  city  or  town,  or  have  placed 
under  a  similar  ban  the  trade  of  a  baker,  of  a  tailor,  of  a  shoe- 


340 


AMERICAN  COURTS  IN  LABOR  CASES 


maker,  of  a  woodcarver,  or  of  any  other  of  the  innocuous 
trades  carried  on  by  artisans  in  their  own  homes.  The  power 
would  have  been  the  same,  and  its  exercise,  so  far  as  it  con¬ 
cerns  fundamental,  constitutional  rights,  could  have  been  jus¬ 
tified  by  the  same  arguments.  .  .  .  Such  governmental  inter¬ 
ferences  disturb  the  normal  adjustments  of  the  social  fabric, 
and  usually  derange  the  delicate  and  complicated  machinery 
of  industry  and  cause  a  score  of  ills  while  attempting  the  re¬ 
moval  of  one. 

When  a  health  law  is  challenged  in  the  courts  as  unconsti¬ 
tutional  on  the  ground  that  it  arbitrarily  interferes  with  per¬ 
sonal  liberty  and  private  property  without  due  process  of  law, 
the  courts  must  be  able  to  see  that  it  has  at  least  in  fact  some 
relation  to  the  public  health,  that  the  public  health  is  the  end 
actually  aimed  at,  and  that  it  is  appropriate  and  adapted  to 
that  end.  This  we  have  not  been  able  to  see  in  this  law,  and 
we  must,  therefore,  pronounce  it  unconstitutional  and  void. 


CHAPTER  XXI 


Conditions  versus  Precedent 

The  opinions  that  are  here  grouped  together  under  the 
general  heading,  Legislation,  have  a  common  element 
notwithstanding  the  diversity  of  the  measures  which 
called  them  forth.  The  cases  are  on  the  border  line  between 
what  is  demanded  by  the  laissez  faire  policy  and  social  legis¬ 
lation  ;  between  the  policy  which  confines  the  activity  of  gov¬ 
ernment  within  the  narrowest  bounds  and  that  which  imposes 
restrictions  upon  the  liberty  of  the  individual  in  the  interest 
of  a  larger  social  freedom. 

Strict  adherence  to  the  laissez  fake  policy  has  passed  quite 
entirely  into  the  realm  of  history.  Factory  legislation,  nu¬ 
merous  in  its  items  and  varied  in  its  requirements,  is  an  ac¬ 
cepted  fact.  Courts  do  not  question  the  right  to  enact  such 
statutes  in  the  interest  of  public  health,  morals,  safety  and 
welfare.  Sanitary  conditions,  safety  devices,  fire  escapes, 
child  labor,  tenement-house  conditions, — these  suggest  the 
broad  field  which  is  included  in  the  term  “factory  laws”  and 
in  which  legal  regulation  is  universally  recognized  as  valid. 
The  related  lines  of  legislation  that  have  been  considered 
are  not  so  generally  accepted  as  valid.  Such  laws  are  in  the 
border  land  between  strict  factory  laws  and  laws  that  do  not 
so  clearly  contribute  to  public  health,  morals,  safety  or  wel¬ 
fare.  It  is  to  this  group  of  laws  and  the  opinions  which 
they  have  called  forth  that  consideration  has  been  restricted. 
A  comparison  of  the  principles  upon  which  the  various 
opinions  are  based  shows  a  few  broad  generalizations  run- 

341 


342 


AMERICAN  COURTS  IN  LABOR  CASES 


ning  through  the  cases,  and  it  is  over  these  that  the  leading 
differences  of  view  arise. 

The  first  point  that  impresses  the  student  is  the  lack  of 
consistency  in  these  decisions.  The  differences  are  of  course 
due  in  part  to  the  novelty  of  the  questions  involved  and 
to  the  varying  degrees  of  importance  attached  to  the  several 
propositions  by  the  various  judges.  This  inconsistency  is 
not  confined  to  differences  of  view  on  the  part  of  different 
courts  upon  questions  essentially  the  same  in  principle,  such 
as  screening  coal,  scrip  payment  or  hours  of  labor  in  mines. 
It  extends  to  the  attitude  assumed  by  the  same  court  on 
questions  the  underlying  principles  of  which  are  not  essen¬ 
tially  unlike. 

The  United  States  supreme  court  allows  the  validity  of 
a  law  restricting  the  hours  of  labor  of  women  in  factories 
to  ten  a  day  and  refuses  approval  of  a  law  imposing  a 
similar  restriction  upon  labor  in  bakeries.  The  New  York 
court  insists  that  the  restriction  of  hours  of  labor  for  bakers 
is  valid  but  declines  to  approve  a  law  prohibiting  night 
work  for  women.  This  same  New  York  court  which  in¬ 
sists  that  women  must  be  protected  in  their  right  to  work 
at  night  endorses  a  law  preventing  barbers  from  working 
on  Sundays.  Concerning  barbers,  this  court  declares : 

It  is  to  the  interest  of  the  state  to  have  strong,  robust, 
healthy  citizens,  capable  of  self-support,  of  bearing  arms,  and 
of  adding  to  the  resources  of  the  country.  Laws  to  effect 
this  purpose,  by  protecting  the  citizen  from  overwork,  and 
requiring  a  general  day  of  rest  to  restore  his  strength  and  pre¬ 
serve  his  health,  have  an  obvious  connection  with  the  public 
welfare. 

In  rejecting  the  law  preventing  night  work  for  women  the 
same  court  said :  “  It  might  be  observed  that  working  in  a 
factory  in  the  night  hours  is  not  the  only  situation  of  menace 
to  the  working  women.” 


CONDITIONS  VERSUS  PRECEDENT 


343 

Such  instances  as  these  will  indicate  the  essential  new¬ 
ness  of  the  situation  to  the  courts.  The  differences  of  view 
and  the  inconsistency  will  doubtless  disappear  in  time.  Re¬ 
versals  of  opinion,  though  infrequent,  are  not  unknown ;  and 
changing  conditions  are  becoming  so  evident  to  all  that  they 
will  very  probably  prove  to  be  determining  in  these  cases 
and  cause  views  that  are  now  rejected  to  be  generally  ac¬ 
cepted. 

The  most  striking  contrast  afforded  by  the  various  opin¬ 
ions  is  in  the  extent  to  which  some  courts  cling  to  precedent 
and  to  an  historic  reading  of  certain  familiar  constitutional 
phrases,  while  others  give  full  recognition  to  prevailing  con¬ 
ditions  and  declare  precedents  inapplicable  to  the  new  situ¬ 
ation.  The  degree  of  emphasis  placed  upon  one  or  the  other  of 
these  different  attitudes  leads  to  conclusions  that  are  of  vital 
importance.  It  means  the  acceptance  or  the  rejection,  the 
constitutionality  or  the  unconstitutionality,  of  laws  enacted 
by  legislative  bodies  when  such  laws  were  enacted  with  the 
evident  intent  to  meet  some  real  want  or  to  afford  relief 
from  an  undesirable  situation.  It  is  of  inestimable  im¬ 
portance  whether  courts  attach  greater  significance  to 
changing  conditions  as  reasons  for  new  legislation  or  to 
judicial  precedents  as  reasons  for  rejecting  such  legislation. 

To  indicate  the  importance  of  this  difference  in  attitude 
on  the  part  of  the  judges  some  of  the  contrasts  shown  in 
the  different  decisions  may  be  recalled  here.  First  there 
is  that  difference  of  attitude  which  is  due  to  changes  ex¬ 
tending  over  a  considerable  period  of  time.  Two  hundred 
years  or  so  ago  it  was  the  accepted  legal  view  that  wages 
could  be  fixed  so  as  to  correspond  with  the  just  wage. 
Neither  party  was  supposed  to  have  any  direct  influence. 
In  England  the  fixing*  was  to  be  done  by  the  justice  of  the 
peace.  That  these  justices  were  often  employers,  or  of  the 
class  whose  interests  were  most  nearly  akin  to  those  of  the 


344 


AMERICAN  COURTS  IN  LABOR  CASES 


employers,  did  not  seem  to  strike  any  one  as  incongruous  ex¬ 
cept  occasionally  the  laborers  themselves.  The  latter  were 
helpless  because  the  law  stood  directly  in  the  way  of  their 
expressing  in  any  effective  way  their  dissatisfaction.  Wages 
were  thus  fixed  largely  in  the  interest  of  employers.  When, 
however,  organizations  of  laborers  were  made  lawful  and 
some  of  their  efforts  to  determine  wages  were  recognized  as 
legal  it  began  to  appear  that  wages  should  be  fixed  only 
by  competition.  When  the  laborers  began  to  fix  wages  by 
strikes  the  courts  were  appealed  to.  These  found  in  favor 
of  competition.  The  whole  view  changed  and  the  arbitrary 
fixing  of  wages  was  no  longer  approved.  So  long  as  the 
employer  stood  the  better  chance  in  the  competition,  com¬ 
petition  seemed  to  the  employing  class  the  most  satisfactory 
basis.  Where  labor  legislation  and  labor  organization  have 
succeeded  in  strengthening  the  hands  of  the  laborer  in  his 
bargaining  activities,  there  has  come  the  severest  test  of  the 
attitude  that  the  court  should  assume.  Should  the  prin¬ 
ciples  of  competition  in  harmony  with  a  philosophy  of  in¬ 
dividualism  obtain  or  should  they  yield  to  the  principles  of 
organization  and  cooperation  in  harmony  with  a  philosophy 
of  socialization  ? 

Not  to  trace  this  development  through  all  of  its  phases, 
for  the  story  is  a  long  one,  it  may  be  illustrated  in  a  typi¬ 
cal  instance.  It  is  that  of  laws  in  which  is  inserted  the  “  re¬ 
quire  or  permit  ”  clause.  Whether  applied  to  hours  of  la¬ 
bor,  payment  of  wages  or  to  conditions  to  be  regulated  in 
special  trades  the  question  arises:  is  a  law  forbidding  an 
employer  either  to  require  or  to  permit  the  employee  to 
do  the  thing  dealt  with  in  the  law  a  violation  of  the  em¬ 
ployee’s  right  to  contract?  On  the  face  of  it,  it  certainly 
seems  as  if  there  were  such  a  restriction.  Experience  in  a 
variety  of  laws  has  shown  however  that  such  a  phrase  in  the 
law  is  quite  necessary  to  the  accomplishment  of  the  purpose 
intended. 


CONDITIONS  VERSUS  PRECEDENT 


345 


Earlier  laws  sought  to  accomplish  the  object  and  at  the 
same  time  to  leave  the  freedom  of  contract  undisturbed. 
In  Illinois  the  law  of  1867  established  eight  hours  as  the 
legal  working  day  in  certain  employments,  but  added  the 
clause  “  where  there  is  no  special  contract  or  agreement  to 
the  contrary.”  A  second  section  of  this  law  contained  the 
further  statement :  “  nor  shall  any  person  be  prevented  by 
anything  herein  contained  from  working  as  many  hours 
overtime  or  extra  hours  as  he  or  she  may  agree.”  In  New 
York  the  experience  was  much  the  same.  The  law  of  1867 
read :  “  eight  hours  of  labor,  between  the  rising  and  set¬ 
ting  of  the  sun,  shall  be  deemed  and  held  to  be  a  legal 
day’s  work,  in  all  cases  of  labor  and  service  by  the  day, 
where  there  is  no  contract  or  agreement  to  the  contrary.” 
In  1870  the  measure  was  extended  so  as  to  include  la¬ 
borers  for  the  state.  It  then  read :  “  eight  hours  shall  con¬ 
stitute  a  legal  day’s  work  for  all  classes  of  mechanics, 
working  men  and  laborers,  excepting  those  engaged  in 
farm  and  domestic  labor;  but  overwork  for  an  extra  com¬ 
pensation  by  agreement  between  employer  and  employee  is 
hereby  permitted.”  In  Pennsylvania  a  law  of  1875  pro¬ 
vided  for  the  payment  by  weight  for  mining  coal,  and  added 
to  its  other  provisions  a  clause  further  providing  that  the 
act  should  not  apply  to  operators  who  should  make  a  con¬ 
tract  with  their  employees  for  some  other  manner  of  com¬ 
pensation.  Commenting  upon  the  practical  working  of  this 
statute  the  Anthracite  Coal  Strike  Commission  says : 

It  may  seem  strange,  but  from  all  the  evidence  before  the 
Commission  the  undoubted  fact  appears  to  be,  that  the  require¬ 
ments  of  this  law  have  never  been  complied  with.  It  is  al¬ 
leged  by  the  counsel  for  the  operators  that  they  have  never 
been  applicable  for  the  reason  that  the  situation  came  within 
the  purview  of  the  last  proviso  of  the  section  quoted  which 
exempts  from  its  provisions  all  cases  where  the  employer 


AMERICAN  COURTS  IN  LABOR  CASES 


346 

shall  by  contract  agree  with  his  miners  otherwise  than  is  pro¬ 
vided  in  the  said  statute  for  their  compensation.1 

A  striking  instance  of  this  failure  on  the  part  of  the  court 
to  comprehend  the  real  situation  and  to  enter  into  an  ap¬ 
preciation  of  the  reasons  that  led  the  legislature  to  enact  the 
law  is  found  in  the  experience  of  California.2  The  “  truck 
system  ”  and  the  “  time  check  ”  system  prevailed  as  a 
method  of  wage  payment.  The  evils  early  attracted  the 
attention  of  the  State  Labor  Commissioner.  In  1885  he 
reported  that  in  the  construction  of  the  San  Francisco  sea 
wall  “  only  patrons  of  the  company  boarding  house  could 
retain  their  places  with  a  certain  firm.”  The  lumber  in¬ 
dustry,  because  of  its  isolation,  was  among  the  worst  of¬ 
fenders.  The  several  published  reports  of  the  Labor  Com¬ 
missioner  show  that 

some  of  -  the  lumber  companies  have  availed  themselves  of 
every  possible  opportunity  to  rob  their  employees  system¬ 
atically.  Not  satisfied  with  profits  of  the  company  store, 
boarding-house,  and  bar,  an  even  more  effective  means  of  ex¬ 
tortion  was  discovered.  The  monthly  wages  of  the  men  were 
paid  with  time-checks  due  in  thirty,  sixty,  or  even  ninety 
days.  Those  who  had  families  to  support,  or  needed  ready 
money  for  other  purposes  could  obtain  it  only  by  cashing  these 
checks  at  a  heavy  discount. 

In  1891,  a  law  was  enacted  requiring  payment  of  wages  at 
regular  intervals,  either  weekly  or  monthly  as  the  company 
should  elect,  but  specifying  the  time  definitely.  The  cor¬ 
porations  evaded  the  intent  of  the  law  by  using  time-checks. 
In  the  Labor  Commissioner’s  report  of  1895-96  these  time- 
checks  are  referred  to  as  a  “  dreadful  curse,”  and  further 

1  Bui.  U.  S.  Bureau  of  Labor,  No.  46,  pp.  483,  484. 

2  Eaves,  History  of  California  Labor  Legislation ,  pp.  257,  258. 


CONDITIONS  VERSUS  PRECEDENT 


347 


legislation  is  urged.  Finally  the  law  was  enacted  requiring 
payment  of  wages  in  lawful  money  payable  monthly.  No 
corporation  could  require  and  no  employee  could  make  an 
agreement  for  a  longer  period  of  payment.  The  law  was 
then  taken  to  the  court.  There  it  was  declared  uncon¬ 
stitutional  on  the  ground  that  it  was  class  legislation  inas¬ 
much  as  it  required  of  corporations  what  it  did  not  require 
of  individuals.  The  conditions  that  prevailed,  the  injustices 
imposed  upon  the  men  working  for  these  corporations,  and 
the  very  direct  and  obvious  relation  between  such  conditions 
and  relations  and  the  law  seem  not  to  have  impressed  the 
court  as  of  any  importance  compared  with  the  fact  that 
corporations,  who  were  the  offenders  in  the  matter,  were 
being  treated  in  a  special  manner. 

In  several  opinions  the  practical  necessity  of  these  words 
is  recognized.  In  other  cases  they  constitute  a  stumbling 
block  over  which  the  court  has  fallen  into  the  error  of  mis¬ 
judging  the  real  situation.  It  was  the  United  States  su¬ 
preme  court  that  held  in  the  Bakeshop  case  that 

the  mandate  of  the  statute,  that  “  no  employee  shall  be  re¬ 
quired  or  permitted  to  work,”  is  the  substantial  equivalent 
of  an  enactment  that  “  no  employee  shall  contract  or  agree  to 
work”  more  than  ten  hours  per  day.  [The  statute  is]  an  ab¬ 
solute  prohibition  upon  the  employer  permitting,  under  any 
circumstances,  more  than  ten  hours'  work  to  be  done  in  his 
establishment.  The  employee  may  desire  to  earn  the  extra 
money  which  would  arise  from  his  working  more  than  the 
prescribed  time,  but  this  statute  forbids  the  employer  from 
permitting  the  employee  to  earn  it. 

In  earlier  times  beyond  question  long  hours  of  labor  have 
been  sought  by  laborers  in  many  instances  where  the  ad¬ 
vantages  accrued  quite  entirely  to  the  laborer.  That  such 
is  the  case  now  it  seems  almost  incredible  that  anyone 


348  AMERICAN  COURTS  IN  LABOR  CASES 

could  believe.  The  employees  of  today  are  not  in  fact 
looking  for  long  hours  or  any  other  conditions  of  labor  that 
are  to  them  unfavorable.  The  employer  on  the  other  hand 
is  anxious  for  such  conditions.  All  that  the  employer  has 
needed  in  order  to  secure  the  working  conditions  most  ac¬ 
ceptable  to  him  is  to  have  the  employee  left  free  to  work  long 
hours.  With  the  unequal  bargaining  power  that  character¬ 
izes  the  situation  it  has  been  an  easy  matter  for  him  to  in¬ 
duce  the  worker  to  agree  to  work  for  any  length  of  day  or 
under  any  conditions  of  payment  that  satisfied  the  employer. 
The  practical  effect  of  the  position  taken  by  the  courts  has 
been  that  they  have  come  to  the  assistance  of  employers 
with  the  doctrine  of  personal  liberty  and  the  employers’  ends 
have  been  gained.  The  entire  force  of  the  statute  was  in  the 
word  “  permit.”  Without  it  the  law  was  of  no  conse¬ 
quence.  With  it  the  law  was  of  importance  in  actually 
tending  to  equalize  the  conditions  of  bargaining. 

Efforts  so  persistently  made  by  organized  labor  to  dis¬ 
courage  overtime  work  take  on  a  meaning  not  always  at¬ 
tributed  to  them  when  viewed  in  the  light  of  this  conflict. 
It  is  briefly  expressed  in  a  resolution  adopted  by  the 
American  Federation  of  Labor  and  published  in  the  Ameri¬ 
can  Federationist.1  “We  advise  strongly  against  the  prac¬ 
tice  which  now  exists  in  some  industries  of  working  over¬ 
time,  beyond  the  established  hours  of  labor.  .  .  It  is  an 
instigator  of  the  basest  selfishness,  a  radical  violation  of 
union  principles,  and  ...  it  tends  to  set  back  the  general 
movement  for  an  eight  hour  day.”  A  further  comment 
upon  the  same  situation  comes  from  the  report  of  the  Com¬ 
mittee  of  One  Hundred  on  National  Health  in  its  Bulletin 
on  National  Vitality .2  Writing  under  the  general  head¬ 
ing,  “  Things  Which  Need  to  be  Done,”  the  following 


1  Vol.  iv,  p.  187. 


2P.  128. 


CONDITIONS  VERSUS  PRECEDENT 


349 

statement  is  made :  “  In  industrial  and  commercial  estab¬ 
lishments  employers  may  greatly  aid  the  health  move¬ 
ment  ...  by  providing  .  .  .  physiological  (generally 
shorter)  hours  of  work.” 

What  shall  be  done,  it  may  be  asked,  when  such  move¬ 
ments,  kept  within  reasonable  limits  and  undertaken  for  the 
benefit  of  those  classes  who  know  their  own  interests  but 
are  unable  to  protect  them  in  the  field  of  freedom  of  con¬ 
tract,  are  blocked  by  the  courts. 

In  the  New  York  Tenement  House  case  two  conflicting 
principles  were  brought  face  to  face  which  the  court  failed 
to  adjust.  As  a  result  of  the  decision  but  one  of  the  prin¬ 
ciples  could  survive.  There  was  the  principle  of  right  to 
private  property  and  its  use  which  the  constitution  pro¬ 
tected.  The  manufacture  of  cigars  was  an  enterprise  that 
had  won  for  itself  a  standing  in  the  industrial  world.  To 
prohibit  such  manufacture  in  the  rooms  of  a  tenement 
house  was  a  restriction  upon  the  pursuit  of  a  legal  occupa¬ 
tion  and  upon  the  use  of  property,  and  for  this  restriction 
the  court  could  not  be  convinced  of  any  need.  That  the 
law  was  a  protection  to  home  life,  that  tenement  house 
conditions  and  the  solution  of  tenement  house  problems  had 
anything  to  do  with  the  law,  the  court  could  not  appreciate. 
On  the  contrary  the  court  insisted  that  the  law  was  an  in¬ 
vasion  of  the  home  life.  It  forced  those  who  wished  to 
work  to  leave  home  and  go  to  the  factory.  Perhaps  the 
climax  of  the  opinion  is  reached  when  the  judge  so  far 
misunderstands  the  home  of  the  tenement  house  where 
cigars  are  made  and  other  sweatshop  work  is  done  as  to 
insist  that  he  cannot  perceive  how  the  cigar  maker  “  is  to 
be  improved  in  his  health  or  his  morals  by  forcing  him  from 
his  home  and  its  hallowed  associations  and  beneficent  in¬ 
fluences.” 

The  conclusion  in  this  case  was  so  evidently  reached 


350 


AMERICAN  COURTS  IN  LABOR  CASES 


wholly  without  reference  to  conditions  in  tenement  houses, 
and  the  opinion  has  been  so  pointedly  and  so  justly  criti¬ 
cized  by  others  that  it  will  not  be  necessary  to  urge  it 
further  as  evidence  of  the  attitude  under  consideration. 

The  New  York  Bakeshop  case  is  even  more  important 
and  has  been  quoted  at  length  in  the  preceding  pages.  In 
the  several  opinions  written,  the  influence  of  both  pre¬ 
cedent  and  conditions  is  clearly  seen.  The  New  York 
court  seems  to  have  been  less  bound  by  precedent  in  this 
case  than  the  federal  court.  It  was  precedent  that  led 
to  the  overthrow  of  a  law  which  had  seemed  so  neces¬ 
sary  to  the  people  of  New  York  state  that  it  had  been 
passed  by  the  legislature  and  approved  by  the  state  court 
as  a  legitimate  exercise  of  the  police  power  in  the  inter¬ 
ests  of  public  welfare.  The  dangers  to  health  from  bake- 
shop  work  and  the  extensive  citations  of  evidence  in  sup¬ 
port  of  the  fact  could  not  be  made  to  outweigh  in  the 
judges’  minds  the  belief  that  the  trade  of  the  baker  was 
as  old  as  civilization  itself  and  that  “  it  has  never  been 
supposed  that  it  was  a  trade  or  vocation  that  was  or 
might  be  dangerous  to  health,  morals  or  good  order,” 
and  that  the  “  claim  that  the  compounding  of  these  con¬ 
stituents,  so  prepared,  in  the  business  of  a  baker,  is  an 
unhealthy  occupation,  will  surprise  the  bakers  and  good 
housewives  of  this  state.”  The  majority  of  the  members 
of  the  Federal  court,  however,  were  ready  to  admit  in 
face  of  the  evidence  that  the  trade  of  a  baker  was  an  un¬ 
healthy  one  but  would  not  concede  that  it  was  unhealthy 
“  to  that  degree  which  would  authorize  the  legislature  to 
interfere  with  the  right  to  labor,  and  with  the  right  of  free 
contract  on  the  part  of  the  individual,  either  as  employer  or 
employee.  ...  To  the  common  understanding  the  trade 
of  a  baker  has  never  been  regarded  as  an  unhealthy  one.” 

In  addition  to  these  two  important  cases  a  number  of 


CONDITIONS  VERSUS  PRECEDENT 


351 


others  may  be  added.  Judge  Cooper  of  California  (John¬ 
son  v.  Goodyear  Mining  Co.)  argued  that  a  law  requiring 
payment  of  wages  at  the  end  of  every  month  prohibited 
the  corporation  and  the  employee  from  making  any  other 
contract  for  the  payment  of  wages.  That  the  workingmen 
did  not  need  any  such  legislation  seems  to  the  judge 
quite  certain. 

The  working  man  of  intelligence  is  treated  as  an  imbecile. 
Being  over  twenty-one  years  of  age,  and  not  a  lunatic  or  in-  * 
sane,  he  is  deprived  of  the  right  to  make  a  contract  as  to  the 
time  when  his  wages  shall  become  due.  .  .  .  The  parties, 
being  able  to  contract  and  willing  to  contract  and  desiring  for 
the  good  of  each  other  to  contract,  are  by  this  statute  for¬ 
bidden  to  do  so. 

Considering  an  Indiana  law  requiring  weekly  payment 
of  wages  in  cash,  Judge  Hadley  takes  much  the  same  view. 
The  Attorney  General  had  argued  before  the  court  that  con¬ 
ditions  demanded  the  law.  This  he  based  on  the  claim  that 
“  wage  earners  are  not  upon  an  equal  footing  with  em¬ 
ployers,  and  opportunities  for  oppression  and  consequent 
public  suffering  ensue  ”  and  further  that  “  thrift  being  bene¬ 
ficial  to  the  community,  it  should  be  encouraged  by  enabling 
workmen  to  pay  cash  for  current  demands,  which  can 
only  be  done  by  requiring  frequent  payment  of  wages.” 
To  these  considerations  growing  out  of  conditions  that 
seemed  evident,  the  court  in  the  opinion  answers : 

Assuming  all  these  things  to  be  true,  they  do  not  of  them¬ 
selves  justify  the  arbitrary  invasion  of  the  personal  rights  and 
liberty  of  the  citizen.  Liberty  to  contract  on  one’s  own  terms, 
to  decide  for  himself  his  own  employment,  to  buy  and  sell, 
to  exchange  one  belonging  for  another,  are  among  his  most 
valuable  and  cherished  rights. 

Frorer  v.  People  was  a  case  that  has  had  wide  influence. 


352 


AMERICAN  COURTS  IN  LABOR  CASES 


Its  opinion  has  been  quoted  in  other  states  in  a  number  of 
cases  where  the  same  principle  was  involved.  The  law 
forbade  mining  companies  to  keep  truck  stores.  This 
seemed  to  the  Illinois  court  as  altogether  beyond  the  pro¬ 
vince  of  the  legislature.  The  court  could  see  the  justifica¬ 
tion  of  laws  which  would  affect  the  mechanical  processes  of 
mining  and  manufacturing.  But  this  law,  says  the  court, 
operates  upon  the  individual,  because  of  his  participation  in 
the  business. 

It  is  not  imposed  for  the  purpose  of  rendering  mining  and 
manufacturing  less  perilous  or  laborious,  nor  to  restrict  or 
regulate  the  duties  of  employer  and  employee  in  respects 
peculiar  to  those  industries,  but  for  the  sole  purpose  of  impos¬ 
ing  disabilities  in  contracting  as  to  tools,  clothing  and  food — 
matters  about  which  all  laborers  must  contract,  and  as  to 
which  all  laborers  in  every  other  branch  of  industry  are  per¬ 
mitted  to  contract  with  their  employers  without  any  restric¬ 
tion. 

In  a  similar  way  the  Missouri  court  in  State  v.  Loomis 
admitted  the  right  of  the  legislature  to  regulate  the  business 
of  mining  and  manufacturing  so  as  to  secure  health  and 
safety  of  employees.  It  could  not,  however,  single  out 
persons  engaged  in  carrying  on  these  pursuits  and  forbid 
them  from  contracting  to  work  for  such  form  of  payment 
as  they  might  choose.  Every  law,  declares  Judge  Gordon 
of  Pennsylvania,  that  proposes  to  prevent  the  laborer  from 
selling  his  labor  for  what  he  thinks  best  “  is  an  infringe¬ 
ment  of  his  constitutional  privileges  and  consequently 
vicious  and  void.”  Finally  the  opinion  in  In  re  Morgan 
may  be  referred  to  for  the  same  purpose.  Here,  wholly  with¬ 
out  regard  to  conditions  of  labor  and  effect  upon  health,  it  is 
declared  that  the  right  of  miners  to  work  must  not  be 
interfered  with.  An  act  which  would  limit  the  hours  of 
work  in  underground  mines  and  smelters  is  “  obnoxious 


CONDITIONS  VERSUS  PRECEDENT 


353 


to  the  provisions  of  our  bill  of  rights  .  .  .  which  guarantee 
to  all  persons  their  natural  and  inalienable  right  to  personal 
liberty,  and  the  right  of  acquiring,  possessing  and  protecting 
property.”  Later  in  the  opinion  it  is  argued  that  since  the 
smelting  process  is  a  continuous  process  it  can  make  no  dif¬ 
ference  to  the  public  health  whether  the  work  be  done  by 
two  shifts  working  twelve  hours  each  or  by  three  shifts 
working  eight  hours  each.  “  The  only  object,”  says  the 
judge,  “  that  can  rationally  be  claimed  for  it  is  the  pre¬ 
servation  of  the  health  of  those  working  in  the  smelters.” 
This  does  not  characterize  the  act  as  one  dealing  with  the 
public  health  and  therefore  the  act  cannot  stand. 

While  such  views  as  the  above  are  expressed  by  some  of 
the  judges  other  views  find  their  way  into  the  opinions  from 
other  courts.  These  show  clearly  that  real  conditions  are 
taken  into  consideration  and  that  they  may  even  outweigh 
the  force  of  precedent  as  expressed  in  earlier  interpretations 
of  certain  constitutional  phrases.  Of  this  attitude  the  in¬ 
stances  are  numerous.  Some  of  the  more  important  have 
been  chosen  as  illustrative  of  the  much  larger  number. 

In  his  dissenting  opinion  in  Adair  v.  United  States  Justice 
Holmes  refers  particularly  to  the  conditions  as  he  sees 
them, — conditions  of  inequality  of  bargaining  power  as  to 
wages  and  conditions  of  employment.  It  seems  to  him 
that  the  section  of  the  law  in  question  “  simply  prohibits 
the  more  powerful  party  to  exact  certain  undertakings,  or 
to  threaten  dismissal  or  unjustly  discriminate  on  certain 
grounds  against  those  already  employed.”  As  to  the  reality 
of  individual  rights  secured  by  the  Fifth  Amendment,  it 
seems  that  the  real  truth  of  the  situation  is,  to  the  mind  of 
the  Justice,  expressed  in  his  statement  that  “  the  notion  of 
a  choice  of  persons  is  a  fiction  and  wholesale  employment  is 
necessary.”  Such  conditions  it  is  proper  to  control  by 
statute. 


354 


AMERICAN  COURTS  IN  LABOR  CASES 


In  State  v.  Brown  &  Sharpe  Manufacturing  Co.  (weekly 
payment  of  wages  by  corporations)  Judge  Rogers  ela¬ 
borated  the  view  that  the  corporation  has  the  advantage 
over  the  individual  in  bargaining  power.  “  It  is  a  matter 
of  common  knowledge,”  he  insists,  “  that  while  corporations 
.  .  .  are  the  richest  and  strongest  bodies,  as  a  rule,  in  the 
state,  their  employees  are  often  the  weakest  and  least  able 
to  protect  themselves,  frequently  being  dependent  upon  their 
current  wages  for  their  daily  bread.”  To  the  claim  that 
each  individual  should  be  left  free  to  follow  his  personal 
choice,  the  reply  is  that  “  poverty  and  weakness  can  wage 
but  an  unequal  contest  with  corporate  wealth  and  power  ” 
and  that  a  recognition  of  these  facts  may  well  form  a  basis 
of  reason  for  the  legislative  act  of  “  minimizing  corporate 
power  to  drive  hard  bargains  with  their  employees,  who, 
too  often  in  the  sharp  and  bitter  competition  for  work,  have 
to  submit  to  such  terms  and  conditions  as  their  employers 
see  fit  to  prescribe.” 

In  Knoxville  Iron  Co.  v.  Harbison,  a  test  of  the  law  regu¬ 
lating  truck  stores  and  payment  of  wages  in  cash,  Justice 
Shiras  gave  the  chief  consideration  to  conditions. 

The  legislature,  as  it  thought,  found  the  employee  at  a  dis¬ 
advantage  in  this  respect  [bargaining  about  the  manner  in 
which  wages  should  be  paid]  and  by  this  enactment  under¬ 
took  to  place  him  and  the  employer  more  nearly  upon  an  equal¬ 
ity.  This  alone  commends  the  act  and  entitles  it  to  a  place 
on  the  statute  book  as  a  valid  police  regulation.  [It  is  calcu¬ 
lated  to]  promote  the  public  peace  and  good  order,  and  to 
lessen  the  growing  tendency  to  strife,  violence,  and  even 
bloodshed  in  certain  departments  of  important  trade  and 
business. 

Justice  Dowling  in  considering  a  similar  principle  ex¬ 
presses  an  opinion  very  much  the  same.  After  discussing 


CONDITIONS  VERSUS  PRECEDENT 


355 


the  conditions  in  which  wage  earners  live  making  frequent 
cash  payments  necessary  to  their  welfare,  he  adds  that  it  is 
clear  that  the  object  of  the  law  “  was  the  protection  of 
wage-earners  from  oppression,  extortion,  or  fraud  on  the 
part  of  others,  and  from  the  consequences  of  their  own 
weakness,  folly  or  improvidence.  We  cannot  say  that  no 
just  ground  existed  for  such  legislative  interference  for  so 
commendable  a  purpose.” 

Speaking  from  the  United  States  supreme  court  bench 
Justice  Brown  points  out  that  in  the  statute  (restricting 
hours  of  labor  in  mines  and  smelters)  the  legislature  had 
recognized 

the  fact,  which  the  experience  of  legislators  in  many  states  has 
corroborated,  that  the  proprietors  of  these  establishments  and 
their  operatives  do  not  stand  upon  an  equality,  and  that  their 
interests  are,  to  a  certain  extent,  conflicting.  .  .  .  The  pro¬ 
prietors  lay  down  the  rules  and  the  laborers  are  practically 
constrained  to  obey  them.  In  such  cases,  self-interest  is  often 
an  unsafe  guide,  and  the  legislature  may  promptly  interpose 
its  authority.  [If  the  legislature  has  power  to  adopt  means 
for  the  protection  of  life]  it  is  difficult  to  see  why  precautions 
may  not  also  be  adopted  for  the  protection  of  their  health  and 
morals.  It  is  as  much  for  the  interest  of  the  state  that  the 
public  health  should  be  preserved  as  that  life  should  be  made 
secure.  The  fact  that  both  parties  are  of  full  age  and  com¬ 
petent  to  contract  does  not  necessarily  deprive  the  state  of 
the  power  to  interfere  where  the  parties  do  not  stand  upon  an 
equality,  or  where  the  public  health  demands  that  one  party  to 
the  contract  shall  be  protected  against  himself. 

Justice  Lucas  in  a  long  opinion  on  the  statute  regulating 
the  screening  of  coal  departs  from  the  usual  contract- 
right  considerations  and  argues  on  the  basis  of  the  condi¬ 
tions  that  prevail.  The  opinion  is  not  based  “  so  much  upon 
the  ground  that  the  business  [of  mining]  is  affected  by  the 
public  use,”  but  upon  “  the  still  higher  ground,” 


AMERICAN  COURTS  IN  LABOR  CASES 


356 

that  the  public  tranquillity,  and  the  good  and  safety  of  so¬ 
ciety,  demand,  where  the  number  of  employees  is  such  that 
specific  contracts  with  each  laborer  would  be  improbable,  if 
not  impossible,  that  in  general  contracts  justice  shall  prevail 
as  between  operator  and  miner ;  .  .  .  that  in  the  company’s 
dealing  with  the  multitude  of  laborers  ...  all  opportunities 
for  fraud  shall  be  removed. 

That  strikes,  labor  conspiracies,  boycotts,  and  other  serious 
labor  disturbances  do  occur  is  a  fact  of  such  notoriety, 
urges  this  opinion,  “that  the  court  may  recognize  judicially’’ 
that  every  disturbance  of  any  magnitude  since  the  civil  war 

has  been  evolved  from  the  disturbed  relations  between  power¬ 
ful  corporations  and  their  servants  or  employees,  [which] 
endanger  the  safety  of  the  state,  stay  the  wheels  of  commerce, 
discourage  manufacturing  enterprise,  destroy  public  confi¬ 
dence,  and  at  times  throw  an  idle  population  upon  the  bosom 
of  the  community.  Surely  the  hands  of  the  legislature 
cannot  be  so  restricted  as  to  prohibit  the  passage  of  laws  di¬ 
rectly  intended  to  prevent  and  forestall  such  collisions. 

\ 

Of  this  opinion  Judge  Cooper  of  the  California  supreme 
court  said  (Johnson  v.  Goodyear  Mining  Co.)  :  “  The 
opinion  while  lengthy  is  not  convincing.’’  Of  the  same 
opinion  Professor  Ely  has  said,  that  it  “  takes  the  position 
— a  true  one — that  wise  legislation  of  this  sort  is  calculated 
to  prevent  industrial  strife  .  .  .  and  to  maintain  the  public 
peace.”  1 

Justice  Day  (McLean  v.  State  of  Arkansas)  refers  to  the 
variety  of  opinion  as  expressed  by  several  state  courts  (on 
the  screening  of  coal).  These  are  matters,  he  says,  which  of 
course  each  state  must  decide  for  itself.  As  evidence  of  the 
conditions  that  exist,  the  report  of  the  Industrial  Commis¬ 
sion  is  referred  to.  While  it  is  recognized  that  there  was 


1  Evolution  of  Industrial  Society ,  p.  416. 


CONDITIONS  VERSUS  PRECEDENT 


357 

not  entire  unanimity  of  opinion  on  the  part  of  the  witnesses 
examined  by  the  Commission,  yet  it  is  pointed  out  that 

a  number  of  witnesses  expressed  opinions,  based  upon  their 
experience  in  the  mining  industry,  that  disputes  concerning 
the  introduction  and  use  of  screens  had  led  to  frequent  and 
sometimes  heated  controversies  between  the  operators  and  the 
miners.  This  condition  was  testified  to  have  been  the  result, 
not  only  of  the  introduction  of  screens  as  a  basis  of  paying 
the  miners  for  screened  coal  only,  but,  after  the  screens  had 
been  introduced,  differences  had  arisen  because  of  the  disar¬ 
rangement  of  the  parts  of  the  screen,  resulting  in  weakening  it, 
or  in  increasing  the  size  of  the  meshes  through  which  the 
coal  passed,  thereby  preventing  a  correct  measure  of  the  coal 
as  the  basis  of  paying  the  miner’s  wages. 

t 

In  the  face  of  the  evidence  set  forth  in  the  report  of  this 
Commission,  and  in  the  knowledge  that  such  legislation  had 
been  deemed  necessary  by  the  legislatures  in  several  of  the 
states,  the  court  declared  itself  “  unable  to  say  .  .  .  that 
this  law  had  no  reasonable  relation  to  the  protection  of  a 
large  class  of  laborers  in  the  receipt  of  their  just  dues  in 
the  promotion  of  the  harmonious  relations  of  capital  and 
labor  engaged  in  a  great  industry  in  the  state.’' 

On  the  question  of  laws  restricting  hours  of  labor  for 
women,  there  are  instances  where  the  conditions  were  of 
importance  in  shaping  the  opinion.  In  Wenham  v.  State 
Judge  Barnes  touches  on  this.  Even  admitting  that  in 
certain  industries  the  employers  and  employees  are  prac¬ 
tically  on  an  equal  footing  when  they  are  adult  males, 
“  these  observations  do  not  apply  to  women  and  children. 

.  .  .  The  employer  who  seeks  to  obtain  the  most  hours  of 
labor  for  the  least  wages  has  such  an  advantage  over  them 
that  the  wisdom  of  the  law  for  their  protection  cannot  well 
be  questioned.”  The  opinion  also  recognizes  fully  the  dif¬ 
ference  in  strength  between  the  sexes  and  accepts  fully  a 


AMERICAN  COURTS  IN  LABOR  CASES 


358 

distinction  in  law  based  upon  well  established  facts  of 
science.  Judge  Dunbar  in  State  v.  Buchanan  reasons  that 
while  the 

principles  of  justice  are  immutable,  [yet]  changing  conditions 
of  society  and  the  evolution  of  employment  make  a  change  in 
the  application  of  principles  absolutely  necessary  to  an  in¬ 
telligent  administration  of  government.  In  the  early  his¬ 
tory  of  the  law  when  employments  were  few  and  simple,  the 
relative  conditions  of  the  citizen  and  the  state  were  different, 
and  many  employments  and  uses  which  were  then  considered 
inalienable  rights  have  since,  from  the  very  necessity  of 
changed  conditions,  been  subjected  to  legislative  control,  re¬ 
striction  and  restraint. 

One  other  instance  may  be  cited  from  this  same  class 
of  legislation.  The  federal  supreme  court,  speaking 
through  Justice  Brewer,  laid  great  emphasis  upon  the  con¬ 
ditions  and  the  facts  established  by  science.  These  opinions, 
he  asserts,  quoted  from  scientific  sources 

may  not  be,  technically  speaking,  authorities,  and  in  them  is 
little  or  no  discussion  of  the  constitutional  question  presented 
to  us  for  determination,  yet  they  are  significant  of  a  wide¬ 
spread  belief  that  woman’s  physical  structure  and  the  func¬ 
tions  she  performs  in  consequence  thereof  justify  special  legis¬ 
lation  restricting  or  qualifying  the  conditions  under  which  she 
should  be  permitted  to  toil. 

The  court  will  not  admit  that  constitutional  questions  are 
to  be  settled  by  “  even  a  consensus  of  present  public 
opinion,”  for  written  constitutions  place  limitations  on  legis¬ 
latures  in  an  unchanging  form  and  thus  give  “  permanence 
and  stability  to  popular  government  which  otherwise  would 
be  lacking.”  Even  in  face  of  this  general  principle  of 
great  importance,  the  court  admits  that 


CONDITIONS  VERSUS  PRECEDENT 


359 


when  a  question  of  fact  is  debated  and  debatable,  and  the  ex¬ 
tent  to  which  a  special  constitutional  limitation  goes  is  af¬ 
fected  by  the  truth  in  respect  to  that  fact,  a  widespread  and 
long-continued  belief  concerning  it  is  worthy  of  consideration. 
We  take  judicial  cognizance  of  all  matters  of  general  knowl¬ 
edge. 

That  differing  degrees  of  importance  are  attached  to  the 
weight  of  precedents  is  beyond  question.  In  many  cases 
precedent  is  followed  and  helpful  legislation  declared  void. 
In  others  the  conditions  dealt  with  are  deemed  of  sufficient 
weight  to  overcome  the  obstacle  of  precedent  in  the  case  and 
to  justify  the  law.  The  former  tendency  gives  little  ground 
for  hopefulness,  but  the  latter  justifies  a  good  deal  of 
optimism  as  to  the  future.  A  further  discussion  of  this 
situation  involves  considerations  of  such  fundamental  im¬ 
portance  that  it  will  be  postponed  to  the  concluding  chapter. 


i 


CHAPTER  XXII 


Conclusions 

Underlying  all  the  confusion  of  interpretation  and  all 
the  differences  of  legal  opinion  revealed  in  the  decisions 
that  have  been  reviewed  are  certain  fundamental  facts. 
These  facts  explain  to  a  large  extent  the  cause  of  the 
differences.  If  the  differences^  the  confusion,  the  conflict¬ 
ing  decisions  and  the  general  feeling  of  dissatisfaction  are 
to  any  extent  to  be  removed  these  facts  must  be  realized. 

First,  it  is  undeniable  that  a  certain  theory  underlies 
the  legal  view  which  is  not  generally  accepted  outside  of 
legal  circles.  This  theory  is  that  law  is  based  on  certain 
principles  of  justice  that  are  eternal  and  immutable.  It 
leads  to  the  idea  that  legal  right  is  an  unchanging  concept. 
Inasmuch  as  those  legal  authorities  now  universally  ac¬ 
cepted  wrote  in  the  age  when  social-contract  ideas  pre¬ 
vailed,  these  principles  and  theories  were  expressed  in  terms 
of  the  social  contract  and  of  natural  rights.  Judges, 
lawyers  and  text-book  writers  continue  to  use  the  phrases. 
A  consequence  is  that  the  common  law  brought  over  from 
the  past  into  the  present  is  expressed  quite  entirely  in 
phrases  that  have  but  little  if  any  present  application. 

We  find  ourselves,  however,  in  this  state  [New  York]  at 
the  beginning  of  the  twentieth  century  substantially  where  we 
were  at  the  beginning  of  the  nineteenth  century  so  far  as  the 
great  body  of  our  legal  principles  is  concerned.  The  same 
360 


CONCLUSIONS  361 

situation  exists  in  the  great  majority  of  the  other  states  of  the 
union.1 

A  second  great  fact  is  that  of  industrial  change.  This 
is  so  generally  recognized  as  to  make  anything  more  than 
the  mere  statement  of  it  unnecessary.  Such  declarations 
as  that  nothing  is  done  today  as  it  was  a  quarter  century 
ago  and  that  the  past  century  has  witnessed  greater  changes 
than  all  preceding  centuries  combined  have  ceased  to  be 
startling.  They  are  taken  for  granted.  This  change  in  all 
our  activities  is  due  largely  to  transitions  in  industry  that 
have  forced  the  establishment  of  new  relations  between  the 
various  industrial  factors.  The  world  at  the  beginning  of 
the  twentieth  century  is  a  world  undreamed  of  a  century 
ago.  Complexity  and  dependence  have  everywhere  taken 
the  place  of  simplicity  and  independence.  The  acts  of  in¬ 
dividuals  become  everywhere  matters  of  social  concern. 
Isolation  is  impossible.  Interdependence  is  unavoidable. 
Here  is  a  contrast  of  almost  immeasurable  importance. 
Legal  development  lagging  so  far  in  the  rear  of  industrial 
expansion  gives  rise  to  a  situation  that  is  well  nigh  impos¬ 
sible  of  practical  adjustment.  The  situation  has  not  es¬ 
caped  comment.  Many  writers  refer  to  “  the  well-known 
but  unfortunate  fact,  so  often  commented  on,  that  our  law 
has  not  kept  pace  in  its  development  with  our  industrial 
evolution.”  2 

Closely  related  to  these  two  great  facts  are  two  others  of 
practical  importance.  The  first  relates  to  our  written  con¬ 
stitutions,  state  and  federal.  These  constitutions  took  form 
at  a  time  when  the  individualist  philosophy  dominated 
men’s  minds.  The  tenets  of  individualism  were  woven  into 

1  Hornblower,  “  A  Century  of  ‘  Judge-Made  ’  Law,”  Columbia  Law 
Rev.,  vol.  7,  p.  457,  Nov.,  1907. 

2  Ely,  Monopolies  and  Trusts,  p.  29. 


AMERICAN  COURTS  IN  LABOR  CASES 


362 

its  structure.  Constitutional  phrases  remain  that  have  their 
whole  meaning  in  the  philosophy  of  individualism,  held  in 
an  environment  in  which  the  ideal  was  social  and  industrial, 
as  well  as  political,  equality.  They  prevailed  at  a  time  when 
the  terms  liberty,  equality,  justice,  natural  and  inalienable 
rights  were  freely  used  and  seldom  defined,  and  when  com¬ 
petition  was  regarded  as  the  great  saving  factor  of  society, 
particularly  in  industry. 

The  second  of  this  group  is  the  fact  that  while  these 
written  constitutions  remain  practically  unchanged  the  en¬ 
tire  foundation  of  philosophy  and  social  thought  upon  which 
at  first  they  rested  so  securely  has  been  materially  altered. 
Individualism  as  expressed  in  the  extreme  laissez  faire  policy 
has  been  abandoned.  Socialization  and  the  recognition  of 
social  solidarity  and  social  interdependence  have  taken  its 
place.  Greater  caution  prevails  in  the  use  of  such  terms  as 
liberty,  equality,  justice  and  rights,  and  more  definite  mean¬ 
ings  are  demanded.  Competition  is  no  longer  a  word  of 
such  talismanic  charm.  Industrial  organization  is  now 
characterized  rather  by  cooperation  and  organization.  The 
great  corporations  and  the  trusts  on  the  one  side  and  the 
great  trade  and  labor  organizations  on  the  other  are  now 
patent  facts. 

Bringing  these  facts  together, — fixed  theory  of  the  law 
and  changing  conditions  of  society,  written  constitutions 
based  on  early  philosophy  and  industrial  and  social  struc¬ 
ture  based  on  a  later  philosophy, — the  real  underlying  na¬ 
ture  of  the  difficulty  appears.  Judges  are  trained  primarily 
in  the  law  and  are  bound  by  habits  of  thought  to  follow  the 
beaten  paths  marked  out  by  the  precedents  of  earlier  years. 
Laws  upon  which  they  pass  opinions  are  on  the  contrary 
essentially  adapted  to  present-day  conditions. 

What  is  sometimes  overlooked  is  that  to  our  judges  falls 
the  very  difficult  task  of  reconciling  elements  that  are  al- 


CONCLUSIONS 


363 

most  irreconcilable.  To  abandon  the  position  taken  as  a 
result  of  their  legal  training  seems  quite  impossible  to  some, 
and  is  not  to  be  expected  of  all  of  them  at  once.  To 
comprehend  the  spirit  of  the  times  and  to  understand  the 
bearing  of  modern  conditions  are  quite  out  of  the  question 
for  them  until  they  have  altered  their  point  of  view. 

If  the  common  law  bore  the  same  relation  to  the  masses 
of  people  today  that  it  did  in  former  times,  the  situation 
would  be  relieved  of  much  of  its  seriousness.  This  is  not 
the  case.  The  situation  has  been  concisely  pointed  out  in  the 
following  words. 

To-day  for  the  first  time  the  common  law  finds  itself  ar¬ 
rayed  against  the  people;  for  the  first  time  instead  of  secur¬ 
ing  for  them  what  they  most  prize  they  know  it  chiefly  as 
something  that  continually  stands  between  them  and  what  they 
desire.  .  .  There  is  a  feeling  that  [the  common  law]  prevents 
everything  and  does  nothing.  ...  It  exhibits  too  great  a  re¬ 
respect  for  the  individual  and  for  the  intrenched  position  in 
which  our  legal  and  political  history  has  put  him,  and  too 
little  respect  for  the  needs  of  society  when  they  come  in  con¬ 
flict  with  the  individual  to  be  in  touch  with  the  present  age.1 

A  gleam  of  hope  appears  in  Judge  Dunbar’s  statement 
(State  v.  Buchanan)  :  “  While  the  principles  of  justice  are 
immutable,  changing  conditions  of  society  and  the  evolution 
of  employment  make  a  change  in  the  application  of  prin¬ 
ciples  absolutely  necessary  to  an  intelligent  administration 
of  government.”  The  relic  of  the  oldtime  view  may  be 
overlooked  in  face  of  the  very  intelligent  application  that 
is  made  in  this  case.  Interest  in  the  truth  or  falsity  of 
the  statement  that  “  the  principles  of  justice  are  immutable  ” 
may  be  left  to  the  realm  of  the  academic,  if  the  proper 

1  Pound,  “Do  We  Need  a  Philosophy  of  Law?”  Columbia  Law  Rev., 
vol.  V,  p.  344,  May,  1905. 


AMERICAN  COURTS  IN  LABOR  CASES 


364 

application  of  these  immutable  principles  be  made.  A 
greater  feeling  of  security  results  however  from  the  con¬ 
sideration  that  whatever  “  justice  ”  may  be  in  itself  man’s 
conception  of  justice  must  of  necessity  change.  So  long 
as  this  fact  is  recognized  and  allowed  to  influence  opinions, 
it  is  of  no  practical  importance  whether  the  principles  of 
justice  be  immutable  and  their  application  subject  to  change 
with  changing  conditions  or  the  principles  of  justice  them¬ 
selves  be  mutable. 

That  there  is  a  distinct  tendency  in  legal  minds  to  regard 
constitutions  as  unchanging  and  unchangeable  is  every¬ 
where  apparent.  No  clearer  evidence  of  the  point  could 
be  furnished,  perhaps,  than  the  citations  that  are  brought 
together  by  a  writer  in  the  Green  Bag d 

As  long  as  it  [the  constitution]  continues  to  exist  in  its 
present  form  it  speaks  not  only  in  the  same  words,  but  with 
the  same  meaning  and  intent  with  which  it  spoke  when  it  came 
from  the  hands  of  its  framers.  (Chief  justice  Taney  in 
Dred  Scott  case.) 

It  is  evident  when  one  considers  the  nature  of  a  rigid  or 
supreme  constitution  that  some  method  of  altering  it  so  as  to 
conform  to  altered  facts  and  ideas,  is  indispensable.  .  .  .  Since 
modifications  or  developments  are  often  needed,  and  since  they 
can  rarely  be  made  by  amendment,  some  other  way  of  making 
them  must  be  found.  The  ingenuity  of  lawyers  has  discov¬ 
ered  one  method  in  interpretation ;  while  the  dexterity  of 
politicians  has  invented  a  variety  of  devices  whereby  legisla¬ 
tion  may  extend,  or  usage  may  modify  the  express  provisions 
of  the  apparently  immovable  and  inflexible  instrument.  .  .  . 
The  interpretation  which  has  thus  stretched  the  constitution 
to  cover  powers  once  undreamt  of,  may  be  deemed  a  danger¬ 
ous  resource.  But  it  must  be  remembered  that  even  the  con- 

1  Amidon,  “The  Nation  and  the  Constitution,”  Green  Bag,  vol.  xix, 
PP-  594  595,  Oct.,  1907. 


CONCLUSIONS 


365 

stitutions  we  call  rigid  must  take  their  choice  between  being 
bent  and  being  broken.  The  Americans  have  more  than  once 
bent  their  constitution  in  order  that  they  might  not  be  forced 
to  break  it.  .  .  .  And  it  has  stood  because  it  has  submitted  to 
a  process  of  constant  though  sometimes  scarcely  perceptible 
change  which  has  adapted  it  to  the  conditions  of  the  new  age. 
(James  Bryce.) 

A  constitution  is  not  to  be  made  to  mean  one  thing  at  one 
time,  and  another  at  some  subsequent  time,  when  the  circum¬ 
stances  may  have  so  changed  as,  perhaps,  to  make  a  different 
rule  in  the  same  case  seem  desirable.  A  principal  share  of  the 
benefit  expected  from  written  constitutions  would  be  lost  if 
the  rules  they  established  were  so  flexible  as  to  bend  to  cir¬ 
cumstances  or  be  modified  by  public  opinion.  ...  A  court  or 
legislature  which  should  allow  a  change  in  public  sentiment  to 
influence  it  in  giving  to  a  written  constitution  a  construction 
not  warranted  by  the  intention  of  its  framers,  would  be  justly 
chargable  with  reckless  disregard  of  official  oath  and  public 
duty.  (Cooley,  Constitutional  Limitations.) 

No  instrument  can  be  the  same  in  meaning  to-day  and  for¬ 
ever  and  in  all  men’s  minds.  As  the  people  change  so  does 
their  written  constitution  change  also.  They  see  it  in  new 
lights  and  with  different  eyes ;  events  may  have  given  unex¬ 
pected  illumination  to  some  of  its  provisions,  and  what  they 
read  one  way  before  they  read  a  very  different  way  now.  .  .  . 
We  may  think  we  have  the  constitution  all  before  us,  but  for 
practical  purposes  the  constitution  is  that  which  the  govern¬ 
ment  in  its  several  departments,  and  the  people  in  the  per¬ 
formance  of  their  duties  as  citizens,  recognize  and  respect  as 
such,  and  nothing  else  is.  Cervantes  says :  “  Every  one  is  the 
son  of  his  own  work.”  This  is  more  emphatically  true  of  an 
instrument  of  government  than  it  can  possibly  be  of  a  natural 
person.  What  it  takes  to  itself,  though  at  first  unwarrantable, 
helps  to  make  it  over  into  a  new  instrument  of  government, 
and  it  represents  at  last  the  acts  done  under  it.  (Cooley, 
History  of  Michigan.) 


AMERICAN  COURTS  IN  LABOR  CASES 


366 

To  these  views  may  be  added  that  of  the  United  States 
supreme  court :  “  Constitutional  questions,  it  is  true,  are 
not  settled  by  even  a  consensus  of  present  public  opinion, 
for  it  is  the  peculiar  value  of  a  written  constitution  that  it 
places  in  unchanging  form  limitations'  upon  legislative 
action,  and  thus  gives  a  permanence  and  stability  to  popular 
government  which  otherwise  would  be  lacking.”  (Muller 
v.  Oregon.) 

In  such  a  situation  as  has  been  outlined,  it  is  impossible 
to  secure  with  any  promptness  a  satisfactory  adjustment  be¬ 
tween  the  opinions  of  courts  and  the  needs  of  a  live  in¬ 
dustrial  society. 

The  practical  nature  of  the  difficulty  appears  again  when 
one  considers  the  functions  of  courts  in  our  system  of  gov¬ 
ernment.  It  will  be  generally  agreed  that  if  these  functions 
are  to  be  stated  briefly  they  will  be  declared  to  be  the  regu¬ 
lation  of  legislation  in  such  a  way  as  to  keep  it  consistent 
with  the  constitution.  The  constitutions  state  the  funda¬ 
mental  principles.  The  laws  make  application  of  these  prin¬ 
ciples  to  the  detailed  work  of  social  activity.  Consistency 
must  be  maintained  between  these  laws  and  the  fundamental 
or  constitutional  law.  This  court  function  is  not  difficult 
to  perform  in  a  satisfactory  manner  so  long  as  the  funda¬ 
mental  principles  are  such  as  enable  the  society  to  do  what 
it  aims  to  do.  The  forcing  of  minor  matters  into  accord 
with  those  of  major  importance  may  occasion  some  hard¬ 
ship  but  not  to  such  an  extent  as  to  interfere  seriously  with 
the  necessary  adjustment.  When,  however,  fundamental  or 
constitutional  principles  cease  to  be  in  accordance  with  and 
expressive  of  social  aims  the  clash  becomes  a  serious  one. 
With  this  important  work  to  perform,  no  one  can  deny  the 
pre-eminence  of  the  courts  in  our  political  system.  As  an 
agency  for  preserving  the  basic  principles  of  a  civilization 
the  courts  deserve  all  the  recognition  and  all  the  honor  that 


CONCLUSIONS 


3  67 

they  receive.  So  far  as  they  keep  these  basic  principles 
alive  and  make  them  a  vital  force,  the  courts  do  their  work 
well.  So  far,  however,  as  they  cling  to  old  forms  that  have 
lost  their  vitalizing  qualities  the  courts  cease  to  help.  They 
become  hindrances  and  to  that  extent  dangerous. 

The  marked  position  of  advantage  that  courts  now  oc¬ 
cupy  with  reference  to  legislation  has  not  failed  to  attract 
attention.  It  may  be  an  open  question  as  to  what  definite 
role  courts  were  intended  to  play  in  the  general  scheme  of 
legislation.  Much  discussion  is  now  current  on  this  topic. 
Whether  or  not  courts  were  intended  to  become  third  houses 
of  legislation,  it  cannot  be  doubted  that  they  are  in  a  posi¬ 
tion  to  assume  such  a  role  and  much  evidence  exists  of  their 
tendency  to  take  advantage  of  that  position.  Whenever 
the  question  of  constitutionality  arises,  the  court  is  the 
final  arbiter.  Further  the  court  decides  whether  or  not 
such  a  question  does  exist.  Thus  the  question  of  constitu¬ 
tionality  is  entirely  in  the  court’s  hands.  It  is  its  own  re¬ 
feree  concerning  questions  to  which  it  is  a  party. 

It  does  not  come  within  the  scope  of  this  work  to  dis¬ 
cuss  fully  the  problems  that  arise  from  the  considerations 
thus  stated.  That  such  discussions  are  being  engaged  in 
offers  basis  of  hope.  That  they  are  being  carried  on  among 
those  skilled  in  the  law,  court  procedure  and  the  prin¬ 
ciples  of  political  science  is  a  matter  of  great  significance. 
The  current  law  periodicals  have  during  the  past  three  or 
four  years  contained  articles  as  pointedly  critical  of  the 
courts  and  their  attitude  toward  social  and  economic  ques¬ 
tions  as  anyone  could  wish.  That  such  articles  are  deemed 
of  sufficient  importance  to  call  for  replies  promises  further 
discussion.  Even  a  casual  reading  of  them  is  sufficient  to 
show  how  necessary  a  changed  attitude  on  the  part  of  the 
courts  appears  to  be  to  the  minds  of  some  of  the  best 
trained  lawyers  of  the  country. 


AMERICAN  COURTS  IN  LABOR  CASES 


368 

An  immediate  need  is  that  courts  shall  come  to  see  and 
to  recognize  the  importance  of  conditions  as  determining 
the  needs  for  legislation.  New  relations  peculiar  to  present 
day  industry  call  as  loudly  for  legislation  relating  to  them 
as  ever  did  the  conditions  attendant  upon  the  first  stages 
of  the  development  of  factories  call  for  new  laws  a  century 
ago.  But  courts  cannot  go  to  the  factories  and  mills  and 
see  the  conditions  of  work,  then  to  the  homes  and  see 
there  the  life  impelled  by  such  conditions,  then  to  the  hos¬ 
pitals,  asylums,  almshouses,  saloons  and  houses  of  prosti¬ 
tution  and  witness  again  their  direct  results.  They  can¬ 
not  go  out  to  see  at  first  hand  these  things.  Commis¬ 
sions  have  been  appointed  to  reveal  such  facts  to  legis¬ 
latures.  These  revelations  have  been  sufficient  to  con¬ 
vince  legislators  of  the  need  for  the  laws.  But  in  too 
many  cases  when  such  laws  have  been  brought  to  the 
courts,  the  arguments  from  facts  have  been  laid  aside  and 
support  for  the  law  has  been  sought  in  legal  principles  or  in 
an  effort  to  convince  the  court  that  because  the  police  power 
is  indeterminate  and  can  be  extended  where  there  is  need 
for  it,  it  may  be  extended  to  cover  the  case.  On  such 
grounds  as  these  the  conservative  temper  of  the  court  is 
very  apt  to  lead  to  a  finding  against  the  law.  One  ex¬ 
periences  some  difficulty  in  explaining  why  the  evidence 
which  has  been  convincing  to  legislators  has  not  been  more 
freely  used  in  arguing  before  the  courts.  Legal  training 
is  probably  largely  responsible.  Citations  from  economists, 
sociologists,  publicists,  philanthropists,  are  seldom  popular 
and  almost  never  convincing  to  the  legally  trained  mind. 
They  cannot  stand  well  against  the  good  old  common  law 
and  the  time  honored  expressions  of  jurists  who  wrote  a 
century  or  more  ago. 

The  exceptions  to  the  course  usually  followed  in  such 
trials  and  their  favorable  outcome  point  a  lesson  that  should 


CONCLUSIONS 


069 

be  learned  more  thoroughly.  When  courts  are  shown  be¬ 
yond  doubt  the  necessity  inherent  in  the  situation  with  which 
the  legislation  deals,  the  realization  of  such  necessity  has  its 
favorable  effect.  Professor  Seager  after  a  study  of  several 
cases  in  1904  stated  as  his  conclusion: 

Confused  and  conflicting  as  are  these  decisions,  it  is  be¬ 
lieved  that  a  study  of  them  justifies  the  contention  that  in  the 
field  of  labor  restrictions  the  courts  will  sustain  any  measure 
which  they  think  really  calculated  to  promote  the  public  wel¬ 
fare.  .  .  .  The  constitutional  and  the  economic  aspects  of  the 
question  are  so  intimately  related  that  we  may  be  certain  that 
a  court  which  believes  a  protective  law  economically  desirable 
will  find  it  legally  admissible.1 

Concerning  the  well-remembered  opinion  of  the  New 
York  court  in  the  Tenement  House  case  the  comment  of 
Mrs.  Kelley  in  Some  Ethical  Gains  Through  Legislation 
has  left  nothing  more  to  be  said.  That  decision  was  based 
upon  personal  liberty.  Its  result  has  been  to  perpetuate  the 
tenement  house  problem.  Had  that  earliest  statute  been 
sustained,  “  it  is  safe  to  assert  that  the  odious  system  of 
tenement  manufacture  would  long  ago  have  perished  in 
every  trade  in  every  city  of  the  Republic.”  Because  the 
court  was  not  made  to  see  the  facts  upon  which  the  need 
for  the  law  rested,  personal  liberty  was  made  the  deciding 
factor,  with  the  result  that  “  for  the  convenience  of  the 
powerful,  the  weakest  industrial  factors  in  the  community 
.  .  .  have  been  invaded  by  industry  and  by  inspectors.”  It 
cannot  be  repeated  too  often  in  connection  with  the  opinion 
in  that  case  that  the  court  so  far  misunderstood  tenement 
house  conditions  and  so  far  confused  the  situation  with  the 

1  “  The  Attitude  of  American  Courts  Toward  Restrictive  Labor 
Laws,”  Political  Science  Quarterly,  vol.  xix,  pp.  589,  593,  601,  Dec., 
1904. 


37° 


AMERICAN  COURTS  IN  LABOR  CASES 


thought  of  the  ideal  “  home  ”  as  to  insert  in  the  opinion 
the  statement  that  the  law  intruded  upon  the  sacred  right  of 
the  cigar  maker  not  to  be  forced  by  an  act  of  the  legisla¬ 
ture  “  from  his  home  and  its  hallowed  associations  and  bene¬ 
ficent  influences  to  ply  his  trade  elsewhere.”  An  opinion  in 
which  the  court  in  all  seriousness  talks  of  the  hallowed  as¬ 
sociations  and  beneficent  influences  of  tenement  house  life  is 
certainly  a  case  that  must  ever  stand  as  an  instance  of  how 
not  to  do  it  in  matters  of  labor  legislation  before  the  courts. 

The  New  York  Bakers’  case  before  the  United  States 
supreme  court  met  with  a  similar  fate  and  for  much  the  same 
reason.  If  that  case,  Professor  Ely  has  declared,  “  had  been 
presented  from  the  standpoint  of  industrial  hygiene  it 
would  not  have  been  lost.  It  would  have  appeared  rea¬ 
sonable.”  1 

The  Bakers’  case  was  before  the  court  in  1905.  In  1908 
the  same  court  heard  Muller  v.  Oregon.  That  case  was 
presented  in  an  entirely  different  manner.  Conditions  as 
they  existed  and  the  latest  facts  of  science  were  brought  be¬ 
fore  the  court  in  a  convincing  way,  with  a  result  altogether 
satisfactory.  In  the  opinion,  as  though  to  justify  the  court 
in  departure  from  the  usual  line  of  consideration,  an  ex¬ 
planation  is  made. 

The  legislation  and  the  opinions  of  experts  contained  in 
the  elaborate  brief  prepared  for  the  court,  says  the  Justice, 

may  not  be,  technically  speaking,  authorities,  and  in  them  is 
little  or  no  discussion  of  the  constitutional  question  presented 
to  us  for  determination,  yet  they  are  significant  of  a  wide¬ 
spread  belief  that  [the  conditions  of  the  case]  justify  special 
legislation.  .  .  .  Constitutional  questions,  it  is  true,  are  not 
settled  by  even  a  concensus  of  present  public  opinion,  for  it  is 
the  peculiar  value  of  a  written  constitution  that  it  places  in 

1  At  Council  Meeting  of  the  American  Association  for  Labor  Legis¬ 
lation,  Chicago,  April,  1909. 


CONCLUSIONS 


Z71 


unchanging  form  limitations  upon  legislative  action,  and  thus 
gives  a  permanence  and  stability  to  popular  government  which 
otherwise  would  be  lacking.  At  the  same  time,  when  a  ques¬ 
tion  of  fact  is  debated  and  debatable,  and  the  extent  to  which 
a  special  constitutional  limitation  goes  is  affected  by  the  truth 
in  respect  to  that  fact,  a  widespread  and  long-continued  belief 
concerning  it  is  worthy  of  consideration.  We  take  judicial 
cognizance  of  all  matters  of  general  knowledge. 

The  elaboration  of  the  brief  which  was  the  means  to  obtain¬ 
ing  the  favorable  opinion  in  this  last  mentioned  case  for 
use  before  the  Illinois  court  secured  not  only  a  favorable 
decision  but  a  virtual  reversal  by  that  court  of  its  former 
opinion  in  a  similar  case. 

Here  is  a  way  out  of  some  of  the  difficulties.  When 
lawyers  presenting  such  cases  shall  avail  themselves  of  like 
methods  the  chances  of  success  will  be  greatly  increased.  The 
method  may  be  carried  further  with  advantage  by  adopting 
a  suggestion  coming  informally  from  several  sources.  The 
plan  is  given  the  form  of  a  definite  suggestion  by  Mr. 
Mornay  Williams  of  the  New  York  Bar  1  in  connection  with 
the  discussion  of  the  decision  of  the  New  York  court  in  the 
new  Workmen’s  Compensation  Act.  The  plan  as  sug¬ 
gested  proposes  the  appointment  of  a  referee  by  the  court 
to  take  testimony  of  facts  concerning  the  actual  conditions. 
This  report  made  by  a  disinterested  referee  could  then  serve 
as  a  guide  to  the  judges  in  estimating  the  importance  to  be 
attached  to  the  industrial  facts  with  which  the  law  aims  to 
deal.  The  advantages  of  such  a  plan  are  apparent.  It 
would  bring  before  the  court  a  conclusion  based  upon  evi¬ 
dence  of  fact  to  supplement  the  involved  legal  argument  based 
upon  general  principles.  This  conclusion  based  upon  fact 
would  not  be  weakened  by  being  drawn  by  counsel  for  one 


1  The  Survey,  vol.  xxvi,  p.  127. 


37* 


AMERICAN  COURTS  IN  LABOR  CASES 


side  from  such  facts  as  he  might  choose  to  present,  and  being 
contradicted  by  opposing  counsel  as  not  presenting  the 
whole  truth.  Such  ex  parte  statements  would  be  weighed 
by  the  referee  and  presented  to  the  court  as  a  balance  of 
conclusion.  Even  such  a  plan  would  not  altogether  escape, 
however,  the  difficulties  that  now  make  so  many  decisions 
unsatisfactory.  The  referee  would  be  a  lawyer  if  not  a 
judge.  Probably  he  would  be  chosen  from  a  list  of  judges. 
That  would  leave  standing  every  objection  that  is  so  real 
and  so  valid  growing  out  of  legal  training  and  legal  habits 
of  mind.  To  such  methods  of  trial  must  be  added  further 
plans.  Among  these  are  two  that  are  of  immediate  import¬ 
ance.  The  changing  of  law  courses  as  at  present  organized 
in  law  schools  is  a  topic  already  receiving  much  attention 
among  lawyers  themselves.  The  changes  urged  lie  along 
the  line  of  a  revision  of  text  books  so  that  statements  now 
rejected  everywhere  else  shall  not  continue  to  be  taught  to 
law  students.  One  writer  urges  that  the  remedy  is  to  be 
found 

in  our  law  schools  ...  in  training  the  rising  generation  of 
lawyers  in  a  social,  political  and  legal  philosophy  abreast  of 
our  time.  [The  present  law  course]  preserves  an  old  legal 
philosophy  and  prevents  the  best  educated  of  our  bar  from  be¬ 
coming  children  of  the  present.  ...  In  view  of  his  relation 
to  the  state  wherein  the  most  intimate  problems  of  sociology 
and  economics  are  tried  in  actions  of  trespass  and  suits  to  en¬ 
join  repeated  trespasses,  must  not  a  philosophy  of  law  founded 
on  a  sound  knowledge  of  the  elements  of  the  social  and  politi¬ 
cal  science  of  to-day  form  part — and  a  necessary  part — of  the 
equipment  of  a  trained  lawyer?1 

The  second  necessary  development  is  a  larger  recognition 

1  Pound,  “Do  We  Need  a  Philosophy  of  Law?”  Columbia  Law  Rev., 
vol.  v,  p.  353,  May,  1905.  See  also  Pound,  “  The  Need  of  a  Sociological 
Jurisprudence,”  Green  Bag,  vol.  xix,  p.  607,  Oct.,  1907. 


CONCLUSIONS 


373 


of  the  authority  of  the  expert  opinion  of  special  students 
of  social  and  industrial  conditions.  Economics  and  socio¬ 
logy  seldom  receive  cordial  treatment  at  the  hands  of  courts. 
The  principles  of  these  newer  sciences  which  bear  such  a 
direct  relation  to  the  important  things  of  life  play  but  a 
very  minor  role  in  shaping  decisions  on  many  of  life’s  most 
perplexing  problems.  After  an  examination  of  a  late 
volume  of  United  States  supreme  court  decisions  an  investi¬ 
gator  concludes: 

Of  discussions  essentially  economic  and  of  subjects  upon 
which  economists  could  throw  so  much  light  this  volume  con¬ 
tains  an  abundance.  There  is  in  this  volume  by  the  most  lib¬ 
eral  enumeration  but  a  single  reference  to  an  economic  writing. 
The  most  effective  and  frequently  cited  authority  [in  the  In¬ 
come  Tax  cases]  was  an  extract  from  Coke  upon  Little¬ 
ton,  concluding,  “For  what  is  the  land  but  the  profits  thereof  ?” 
Adam  Smith,  Turgot  and  a  few  other  standard  writers  were 
accorded  equal  rank  with  the  best  English  dictionaries  in  de¬ 
fining  a  “  direct  tax  ”  and  two  casual  references  to  Mill  and 
one  to  Seligman  were  made  incidentally.  These  are  all  the 
references  to  economic  writings  contained  in  the  339  pages 
covered  in  the  reports  by  these  cases. 

Another  illustration  of  the  same  point  is  given  by  the  same 
writer.  In  reply  to  the  opposing  counsel’s  citations  from 
economic  writers  a  lawyer  sought  to  dismiss  them  all  with 
a  wave  of  his  hand  and  the  remark :  “  What  we  want  to  get 
at,  may  it  please  the  court,  is  the  good  old  English  Common 
Law  as  it  has  existed  from  the  days  of  Magna  Charta.” 
The  writer  adds :  “  So  far  as  any  direct  influence  upon  our 
courts  is  concerned,  our  modern  text  books  on  economics 
might  as  well  be  written  in  Chinese.”  1  That  the  charges 

1  Humble,  “  Economics  From  a  Legal  Standpoint,”  American  Law 
Rev.,  vol.  xlii,  pp.  379,  382,  May-June,  1908. 


374 


AMERICAN  COURTS  IN  LABOR  CASES 


made  by  this  writer  are  true  cannot  be  doubted.  One  will 
search  in  vain  through  the  almost  unending  pages  of  court 
opinions  in  cases  which  involve  social  and  industrial  inter¬ 
ests  to  find  references  to  economics  or  sociology  that  are 
given  weight.  There  have  come  to  some  of  our  courts  most 
recently  men  who  begin  to  realize  this  fault.  From  these 
more  may  be  expected.  Their  opinions  are  often  dissent¬ 
ing,  yet  they  have  in  them  germs  of  development  that  will 
bear  fruit  in  the  future.  From  one  of  this  small  group,  Mr. 
Justice  Holmes,  has  come  these  words:  “In  my  opinion, 
economists  and  sociologists  are  the  people  to  whom  we 
ought  to  turn  more  than  we  do  for  instruction  in  the 
grounds  and  foundations  of  all  rational  decisions.”  1 

The  value  of  expert  economic  advice  is  being  recognized 
more  and  more.  When  commissions  appointed  by  legisla¬ 
tures  were  composed  largely  of  lawyers  their  reports  were 
generally  such  as  to  secure  legislation  acceptable  to  courts 
but  not  well  adapted  to  benefit  society.  More  recently  eco¬ 
nomic  experts  have  been  appointed  either  as  members  of 
such  commissions  or  as  consulting  experts.  The  reports  of 
such  commissions  are  among  our  most  valuable  documents. 
Legislation  enacted  as  a  result  of  their  work  has  usually 
been  well  adapted  to  benefit  society  but  has  often  not 
been  acceptable  to  courts.  Commissions  have  revealed 
through  their  investigations  and  reports  the  need  for  legis¬ 
lation  restricting  the  hours  of  labor  for  women  in  Illinois, 
the  need  for  the  regulation  of  the  hours  of  labor  in  bakeries 
in  New  York,  the  need  for  the  regulation  of  tenement  work 
in  New  York,  the  need  for  workingmen’s  compensation  to 
take  the  place  of  the  old  relation  of  legal  liability.  When 
these  cases  came  to  the  courts  the  industrial  conditions  and 
the  economic  principles  were  alike  brushed  aside.  When 

1  Ely,  Evolution  of  Industrial  Society ,  p.  415,  note. 


CONCLUSIONS 


37  5 


such  expert  advice  can  be  brought  to  bear  upon  the  minds 
of  judges  a  change  may  be  expected  similar  to  that  occa¬ 
sioned  by  the  use  of  such  advice  in  legislative  bodies. 

While  one  cannot  urge  that  courts  shall  ever  depart  from 
the  traditional  and  constitutional  attitude  of  protecting  life, 
liberty  and  property  it  seems  that  the  constitution  itself 
cannot  be  made  to  accomplish  all  that  it  must  have  been  in¬ 
tended  to  accomplish  unless  the  content  of  its  phrases  be 
allowed  to  change  with  the  changing  social  conditions. 
Doubtless  the  framers  of  our  federal  constitution  were  in¬ 
tent  upon  preserving  for  all  time  the  advantages  that  had 
just  been  secured  through  the  political  struggle  with  Eng¬ 
land.  No  one  can  suppose  that  they  intended  that  con¬ 
stitution  to  become  a  barrier  to  the  gaining  of  other  bless¬ 
ings  for  themselves  and  their  posterity.  The  largest  work 
that  a  court  can  do,  and  it  is  work  that  must  be  done  by 
some  one,  is  to  keep  a  constitution  up  to  date.  Such  ex¬ 
pressions  as  “  life,  liberty  and  property,”  “  life,  liberty 
and  pursuit  of  happiness  ”  and  “  freedom  of  contract  ”  must 
not  be  allowed  to  lose  their  importance.  Yet  it  must  be 
admitted  that  they  have  not  a  vital  meaning  as  now  often 
used  by  courts.  When  a  court  admits  that  conditions  are 
such  that  “  opportunities  for  oppression  and  consequent  pub¬ 
lic  suffering  ”  may  arise  and  that  “  wage  earners  are  not 
upon  an  equal  footing  with  employers  ”  and  then  in  face  of 
such  an  admission  insists  that  such  things  “  do  not  of  them¬ 
selves  justify  the  arbitrary  invasion  of  the  personal  rights 
and  liberties  of  the  citizen;”  and  goes  further  and  insists  that 
“  liberty  to  contract  on  one’s  own  terms,  to  decide  for  him¬ 
self  his  own  employment  .  .  .  are  among  his  most  valuable 
and  cherished  rights”  (Republic  Iron  and  Steel  Co.  v. 
State),  it  is  difficult  to  see  that  “  freedom  of  contract  ”  and 
“  personal  rights  and  liberties  ”  are  of  any  real  value  to 
those  who  are  in  need  of  constitutional  protection. 


AMERICAN  COURTS  IN  LABOR  CASES 


37  6 

The  age  in  which  our  constitutional  principles  were  given 
their  present  form  of  expression  was  an  age  of  govern¬ 
mental  non-interference.  Such  a  policy  was  adopted  as  be¬ 
ing  the  one  that  would  secure  the  best  results.  Laissez 
faire  was  the  natural  political  policy  in  the  day  of  an  ex¬ 
treme  individualistic  philosophy.  The  departure  from  such 
a  policy  has  been  a  very  real  one.  It  finds  its  expression 
in  the  main  in  the  factory  laws.  These  laws  were  at  first 
tolerated  because  of  the  imperative  need  for  them  that  con¬ 
ditions  imposed.  Toleration  has  passed  into  a  more  willing 
sanction,  and  that  in  turn  into  a  positive  insistence  that 
such  laws  are  not  a  necessary  evil,  that  they  enable  the  con¬ 
stitution  to  do  for  citizens  living  under  it  what  it  was  in¬ 
tended  to  do  as  stated  in  its  preamble. 

But  this  change  has  not  been  a  sudden  one  effected  by  the 
cumbersome  machinery  of  amendment.  In  the  main  the 
change  has  come  about  slowly.  It  has  been  accepted  where- 
ever  conditions  were  revealed  which  made  such  changes 
necessary.  It  has  not  led  to  any  violent  strains  in  constitu¬ 
tional  interpretation.  Life,  liberty,  property,  pursuit  of 
happiness,  freedom  of  contract,  all  are  more  really  protected 
by  our  constitution  because  of  such  changes  in  interpretation. 
The  constitution  is  stronger  because  of  them.  It  always 
seems  easier  to  realize  that  changes  have  occurred  in  the 
past  than  to  appreciate  that  they  are  continuing  in  the  very 
present.  Nothing  could  be  more  true  however.  An  ad¬ 
justment  of  constitutional  meaning  in  the  past  must  be  a 
part  of  similar  adjustment  in  the  present.  Departure  from 
Individualism  in  the  direction  of  Socialization,  departure 
from  the  industrial  simplicity  of  the  domestic  system  to  the 
complexity  of  the  factory  system  with  the  large  industrial 
unit,  the  corporation,  and  the  laboring  “  class,” — these  are 
the  changes  of  the  present.  Non-interference  by  govern¬ 
ment  in  industry  is  no  longer  held  to  be  either  wise  or  pos- 


CONCLUSIONS 


377 


sible.  Factory  legislation  is  not  sufficient  to  eliminate  the 
evils  of  a  twentieth  century  industry.  Social  legislation  is 
imperative.  The  conditions  demand  it.  Here,  again, 
changes  must  be  made  in  former  meanings  of  our  con¬ 
stitutional  phrases  or  the  constitution  will  lose  its  vitality. 
It  cannot  remain  a  vital  factor  in  preserving  amicable  re¬ 
lations  in  a  twentieth  century  society  if  it  is  to  be  allowed  to 
have  only  the  meaning  of  an  eighteenth  century  philosophy 
expressed  in  terms  of  an  eighteenth  century  civilization. 

Twentieth  century  liberty,  property  and  happiness  are  not 
those  of  two  centuries  ago.  The  same  words  carry  quite  a 
different  content.  We  neither  want  nor  need  the  kind  of 
rights  our  great  grandfathers  had  any  more  than  we  want 
or  need  the  kind  of  stage  coach  they  traveled  in  or  the 
kind  of  tools  they  worked  with.  To  the  extent  that  the 
courts  continue  to  insist  upon  our  having  such  rights,  so¬ 
ciety  will  be  as  seriously  handicapped  as  it  would  be  if  stage 
coaches  and  hand  sickles  were  forced  upon  us.  A  legisla¬ 
ture  is  convinced  that  a  law  is  needed  to  secure  weekly  pay¬ 
ment  of  wages.  This  conviction  is  based  on  an  economic 
advantage,  the  desire  of  workmen  to  have  a  weekly  payday 
and  the  inability  of  such  workmen  to  secure  what  they 
greatly  desire  because  of  the  inequality  of  bargaining  power. 
A  court  reviews  the  law.  The  court  cannot  see  any  eco¬ 
nomic  advantage  to  the  community  from  such  payments. 
It  does  not  seem  to  realize  that  the  workingmen  want  it. 
It  sees  that  employer  and  employee  are  both  men,  and  being 
men  they  must  be  equal.  This  equality  of  right  cannot 
exist,  in  the  mind  of  the  court,  unless  the  workingman  is 
left  free  to  agree  to  work  for  irregular  payments  if  he 
chooses.  So  the  conclusion  of  the  court  is  that  such  legis¬ 
lation  is  not  in  accord  with  the  constitution  inasmuch  as  it 
violates  the  workman’s  right  to  life,  liberty,  property,  pur¬ 
suit  of  happiness  or  freedom  of  contract.  The  court  then 


AMERICAN  COURTS  IN  LABOR  CASES 


378 

overthrows  the  act  of  the  legislature  by  a  line  of  reasoning 
that  has  no  reference  to  conditions  and  that  deprives  these 
phrases  of  any  present  meaning.  To  reduce  such  a  case  to 
its  final  terms  it  may  be  stated  thus.  If  the  law  allows  the 
master  to  employ  only  on  terms  of  weekly  payment,  then 
the  servant  can  find  employment  only  on  such  terms.  That 
is  a  restriction  upon  his  “  liberty.”  If  the  court  saw  the 
situation  in  its  real  light,  it  would  be  stated  thus.  If  the 
employer  finds  it  to  his  personal  interest  to  employ  the 
workman  only  upon  terms  of  monthly  payment,  the  work¬ 
man,  whatever  his  own  personal  interest  may  be,  can  find 
employment  only  on  such  terms.  That  is  to  say :  If  the 
employer  is  obliged  by  law  to  pay  wages  at  the  end  of  each 
week  for  services  rendered,  then  the  workman  can  find  em¬ 
ployment  only  on  such  terms.  That  is  a  distinct  contribu¬ 
tion  to  his  welfare.  Even  at  its  worst  it  is  a  choice  between 
liberty  and  welfare.  And  when  one  finds  that  the  constitu¬ 
tion  forces  upon  the  employee  under  the  name  of  liberty 
something  that  he  does  not  want  and  thereby  deprives  him 
of  something  that  is  a  distinct  contribution  to  his  welfare, 
one  wonders  if  our  constitution  must  continue  to  be  made 
an  agency  in  accomplishing  such  an  end. 

What  is  true  of  this  case  as  illustrative  is  true  of  a  list  of 
employments  that  is  certainly  not  a  short  one.  Does  any 
one  suppose  that  bakers  want  to  work  fourteen  hours  a 
day  and  seven  days  in  a  week?  Do  women  work  at  night 
or  during  a  twelve  hour  day  or  longer  from  choice?  Is 
sweat  shop  labor  voluntarily  chosen  in  preference  to  other 
work?  Is  one  to  suppose  that  workmen  with  families  to 
support  are  entirely  indifferent  to  payday,  or  that  they 
would  exercise  their  freedom  by  deliberately  insisting  that 
wages  should  be  paid  at  irregular  intervals  not  oftener  than 
ten  or  twelve  times  a  year?  Even  ministers  and  college 
professors  object  to  irregular  payment  of  salaries  or  pay- 


CONCLUSIONS 


379 


ment  in  ten  installments.  Physicians,  lawyers  and  others 
whose  income  is  in  the  form  of  fees  complain  that  irregular* 
payments  make  the  problem  of  financing  the  family  budget  a 
difficult  one.  Do  barbers  insist  upon  their  inalienable  right 
to  work  all  day  Sunday  as  well  as  nearly  all  Saturday  night  ? 
Every  one  of  the  questions  here  raised  has  received  a  serious 
affirmative  answer  at  the  hand  of  some  judicial  tribunal. 
The  court  has  then  come  to  the  rescue  of  the  rights  of  such 
persons  by  sweeping  away  the  acts  of  an  oppressive  legis¬ 
lature  and  restoring  to  them  their  constitutional  right  of 
freedom  of  contract  and  opening  for  them  the  way  to  pursuit 
of  happiness.  When  the  Wisconsin  legislature  enacted  a 
law  providing  for  closing  barber  shops  on  Sunday,  the  su¬ 
preme  court  of  the  state  upheld  the  law.  The  extent  to 
which  barbers  regarded  the  law  as  an  invasion  of  their 
rights  as  citizens  of  the  state  may  be  seen  in  their  attitude 
toward  the  decision.  “  General  rejoicing  prevails,”  says  the 
Journeyman  Barber /  “  amongst  the  barbers  of  Wisconsin 
and  especially  Milwaukee  where  the  barbers  have  been 
slaves  to  Sunday  work  ever  since  this  city  had  barber 
shops.” 

Freedom  of  contract  is  one  of  the  rights  most  strongly  in¬ 
sisted  upon  by  courts  in  general.  This  insistence  leads  to 
difficulties  often  more  serious  than  those  sought  to  be 
avoided  by  its  means.  That  the  constitution  nowhere 
guarantees  directly  freedom  of  contract  is  a  fact  more  gen¬ 
erally  admitted  than  acted  upon.  That  freedom  to  contract 
is  derived  from  constitutional  rights  expressly  stated  affords 
reason  for  refusing  to  regard  it  as  a  right  of  the  same  de¬ 
gree  of  sanctity  as  life  or  liberty.  The  right  to  limit  free¬ 
dom  of  contract  is  so  widely  recognized  that  opinions  do 
not  generally  stop  to  discuss  it.  Numerous  limitations  placed 

1  Vol.  v,  p.  372,  Nov.,  1909. 


AMERICAN  COURTS  IN  LABOR  CASES 


380 

upon  this  right  in  the  interests  of  public  welfare  leave  no 
doubt  of  the  error  of  any  assumption  of  an  unqualified  right 
to  freedom  of  contract.  Yet  the  burden  of  proof  always 
lies  with  the  party  that  contends  for  a  further  restriction.  To 
Sir  George  Jessel  has  been  credited  the  formulation  of  a 
statement  in  1875  that  has  had  “  more  influence  at  court 
than  volumes  of  economic  writing  or  even  of  evidence  of 
conditions. ”  1  It  concerns  freedom  of  contract  and  is  as 
follows :  “  If  there  is  one  thing  more  than  another  which 
public  policy  requires,  it  is  that  men  of  full  age  and  com¬ 
petent  understanding  shall  have  the  utmost  liberty  of  con¬ 
tracting  and  that  such  contracts  shall  be  enforced  by  courts 
of  justice.”  The  expression  itself  is  of  as  much  importance 
today  as  it  ever  was,  if  rightly  understood.  If  not  so  un¬ 
derstood,  however,  it  can  result  only  in  harm.  Conditions 
show  that  masses  of  men  “  of  full  age  and  competent  un¬ 
derstanding  ”  have  not  the  “  utmost  liberty  of  contracting.” 
They  have  in  fact  nothing  whatever  to  say  about  what 
agreement  they  shall  work  under.  Employed  in  wholesale 
numbers  in  a  manner  wholly  impersonal,  their  choice  is  to 
take  work  on  the  terms  offered  or  let  it  alone.  Clearly 
every  whit  of  freedom  of  contract  lies  with  the  employer. 
There  are  opinions  that  cannot  be  carefully  read  without 
giving  the  reader  the  impression  that  the  employer's  free¬ 
dom  to  make  a  contract  suitable  to  himself  was  a  consider¬ 
ation  in  the  judge’s  mind  more  weighty  than  the  working¬ 
man’s  freedom.  Necessarily  the  employer’s  liberty  must 
be  limited  as  that  of  his  employee  is  expanded.  When  a 
situation  wherein  the  bargaining  advantage  lies  so  obviously 
on  one  side  is  sought  to  be  remedied,  the  remedy  cannot  be 
effected  without  restricting  the  side  that  formerly  had  the 

1  Humble,  “  Economics  From  a  Legal  Standpoint,”  American  Lazv 
Rev.,  vol.  xlii,  p.  384,  May-June,  1908. 


CONCLUSIONS 


381 

advantage.  In  view  of  these  facts  it  becomes  evident  that 
courts  that  take  the  technical  legal  view  of  the  right  of  con¬ 
tract  by  seeking  to  perpetuate  rights  do  in  fact  deprive  of 
those  rights  the  very  ones  whom  they  profess  to  help.  An 
instance  will  make  this  clear.  A  law  requiring  wage  pay¬ 
ment  in  money  was  enacted  in  Missouri.  This  law,  the 
court  said,  singled  out  workingmen  in  mines  and  manufac¬ 
turing  establishments  and  said  to  such:  “You  cannot  con¬ 
tract  for  labor  payable  alone  in  goods,  wares  and  merchan¬ 
dise.”  Others  may  make  such  contracts  “  but  you  cannot.” 
“  Though  of  full  age,  and  competent  to  contract,  still  you 
shall  not  have  the  power  to  sell  your  labor  for  meat  and 
clothing  alone,  as  others  may.”  That  instances  of  oppres¬ 
sion  occur  may  be  true,  admits  the  court.  Yet 

conceding  that  such  instances  may  and  do  occur,  still  that  fur¬ 
nishes  no  reasonable  basis  for  depriving  all  persons  engaged 
in  the  two  lawful  and  necessary  pursuits  of  the  right  to  make 
and  enforce  every-day  contracts.  Liberty,  as  we  have  seen, 
includes  the  right  to  contract  as  others  may,  and  to  take  that 
right  away  from  a  class  of  persons  following  lawful  pursuits 
is  simply  depriving  such  persons  of  a  time-honored  right 
which  the  constitution  undertakes  to  secure  to  every  citizen. 

Could  any  expression  show  more  clearly  the  failure  to  ap¬ 
preciate  conditions,  failure  to  realize  what  scrip  payment 
and  truck  stores  mean,  and  the  determination  to  enforce  in 
modern  conditions  old  meanings  adaptable  to  surroundings 
that  no  longer  exist.  The  employees  are  in  fact  deprived 
of  the  substance  of  liberty  in  order  that  they  may  have  its 
semblance.  The  employers  in  fact  are  supported  in  a  posi¬ 
tion  of  absolute  dictators  under  cover  of  terms  that  'imply 
equality.  How  striking  is  the  contrast !  The  technical 
view  as  adopted  by  so  many  judges  from  old  definitions 
and  ancient  precedents  is  that  any  law  that  prevents  a  la- 


AMERICAN  COURTS  IN  LABOR  CASES 


382 

borer  from  selling  his  labor  as  he  thinks  best  is  an  in¬ 
fringement  of  his  constitutional  privileges,  especially  his 
freedom  to  contract,  and  consequently  is  vicious  and  void. 
It  deprives  him  of  a  right  which  the  constitution  undertakes 
to  guarantee  to  every  citizen.  Public  policy,  indeed,  re¬ 
quires  that  men  shall  have  utmost  liberty  of  entering  freely 
and  voluntarily  into  contracts.  On  the  other  hand  the  view 
is  that  in  certain  employments,  unlike  other  employments  in 
certain  very  important  particulars,  workingmen  very  much 
desire  to  have  what  they  are  totally  unable  to  get.  Their 
having  or  not  having  these  things  touches  so  many  people 
in  respects  so  fundamentally  important  that  the  matter  be¬ 
comes  one  of  public  interest.  That  these  may  have  what  is 
so  necessary  to  their  own  welfare  and  to  the  welfare  of  the 
public,  laws  are  enacted  to  provide  for  it.  These  laws,  con¬ 
ditions  very  clearly  indicate,  are  necessary  to  secure  such 
liberty  to  all  in  an  equal  degree.  In  such  a  case  such  laws 
can  be  nothing  else  than  constitutional  since  they  protect 
men  in  their  equality.  They  restore  to  some  those  rights 
which  they  have  lost  and  which  the  constitution  undertakes 
to  secure  to  every  one.  In  any  condition  where,  in  the  ab¬ 
sence  of  a  law,  a  laborer  is  practically  prevented  from  sell¬ 
ing  his  labor  as  he  thinks  best,  or  from  being  on  an  equality 
in  opportunity  to  contract,  the  presence  of  such  a  law  is  a 
protection  to  his  constitutional  privileges.  It  becomes  a 
constitutional  necessity.  In  any  modernized  interpretation 
of  the  Constitution,  such  a  law  must  be  constitutional. 
Without  it  the  constitution  is  helpless.  With  it  that  docu¬ 
ment  becomes  real,  alive  and  a  positive  force. 

With  the  contract  understood  as  it  is,  can  there  be  any 
doubt  as  to  what  must  be  the  final  outcome  of  this  conflict 
of  view,  if  men  are  to  continue  to  look  to  the  constitution 
and  to  the  courts  for  guidance  as  to  their  rights.  Writ¬ 
ing  on  this  subject  of  the  attitude  of  courts  on  the  rights  of 


CONCLUSIONS 


383 

contract,  an  author  already  quoted  says  of  the  decisions  in 
general  that  they  “  serve  to  show  that  the  right  of  the  in¬ 
dividual  to  contract  as  he  pleases  is  upheld  by  our  legal 
system  at  the  expense  of  the  right  of  society  to  stand  be¬ 
tween  our  laboring  population  and  oppression.”  1 

The  situation  so  far  as  the  contract  relation  is  concerned 
reaches  a  conclusion  so  absurd  as  to  be  hardly  believable. 
Clearly  the  employee  class  does  not  want  long  hours,  irreg¬ 
ular  pay,  or  conditions  of  labor  dangerous  to  health.  To 
assume  that  workmen  want  such  conditions  is  absurd.  If, 
then,  they  do  not  want  them  it  is  scarcely  less  absurd  to  as¬ 
sume  that  they  value  the  liberty  which  enables  them  to  in¬ 
sist  upon  such  terms.  To  the  workman  as  a  class  such  a 
freedom,  judged  by  results,  can  be  no  freedom  at  all.  Nor 
indeed  are  any  cases  to  be  found  where  the  workmen  are 
appealing  to  the  courts  for  the  protection  of  this  right.  The 
only  indication  that  can  be  found  is  that  in  which  employees 
appear  as  witnesses  to  testify  that  long  hours,  night  work, 
irregular  pay  or  some  similar  condition  is  necessary  in  order 
that  they  may  make  a  living.  The  best  instance  illustrative 
of  this  is  in  the  attack  made  by  the  employer  upon  the 
Illinois  law  restricting  the  hours  of  labor  of  women.  Cur¬ 
rent  discussion  of  the  matter  during  the  trial  pointed  out 
the  real  truth  of  the  situation.  One  employee  testified  that 
she  had  been  at  work  making  paper  boxes  for  thirty-two 
years,  beginning  when  thirteen  years  old.  She  earned  with 
this  thirty-two  years  of  experience  sixteen  cents  an  hour 
working  from  half  past  seven  in  the  morning  until  five  at 
night  with  one-half  hour  for  lunch.  In  the  busy  season  she 
worked  again  from  six  to  nine  o’clock  in  the  evening.  An¬ 
other  employee  had  been  working  for  sixteen  years  having 
begun  at  sixteen  years  of  age.  One  of  these  employees  was 

1  Pound,  “Do  We  Need  a  Philosophy  of  Law?”  Columbia  Law  Rev., 
vol.  v,  p.  345,  May,  1905. 


AMERICAN  COURTS  IN  LABOR  CASES 


384 

supporting  a  dependent  sister.  The  other  was  the  source  of 
support  for  a  father,  a  mother,  a  sister  and  a  brother.  Both 
of  these  employees  testified  that  it  was  necessary  for  them  to 
work  longer  than  ten  hours  in  order  to  earn  enough  to  pre¬ 
vent  running  into  debt.  It  was  a  simple  matter  for  the 
skill  of  the  lawyer  to  make  it  appear  that  because  these 
employees  had  to  work  long  hours  to  earn  a  living  it  was 
a  violation  of  their  right  of  contract  to  forbid  them  to  do  so. 
The  connection  between  piece  wages,  long  hours  and  net 
income  has  so  often  been  pointed  out  that  it  is  unnecessary 
to  elaborate  the  suggestion  raised  in  the  discussion  at  the 
time,  that  is,  why  the  wages  paid  are  so  small  that  injur¬ 
iously  long  hours  are  a  necessity. 

These  cases  are  almost  uniformly  brought  to  court  by 
employers,  who  appear  strangely  solicitous  of  the  rights 
of  their  employees.  Yet  this  has  not  generally  been  ap¬ 
parent  to  the  judges.  It  seems  as  if  to  their  minds  a  right 
was  a  right  no  matter  by  whom  it  might  be  urged.  Such 
a  habit  of  viewing  rights  seems  to  have  blinded  courts  to 
the  real  facts  in  a  case  where  one  seeks  his  own  private 
ends  through  the  court  by  appearing  to  champion  the  rights 
of  others.  In  two  instances  has  the  real  situation  revealed 
itself  to  the  court  clearly  enough  to  call  for  comment. 

( 1)  It  is  a  notable  fact  in  this  connection  that  the  alleged  con¬ 
stitutional  right  of  the  laborer  to  contract  his  labor  at  any 
price  which  seems  to  him  desirable  is  not  in  this  or  any  other 
reported  case  a  claim  urged  by  the  laborer,  but  the  earnest  con¬ 
tention  in  his  behalf  is  made  by  the  contractors  who  are  reap¬ 
ing  the  benefits  of  the  violation  of  that  contract  in  paying  the 
laborer  a  less  remuneration  than  he  is  entitled  to  under  the 
statute.  (In  re  Broad.) 

(2)  It  may  not  be  improper  to  suggest  in  this  connection 
that  although  the  prosecution  in  this  case  was  against  the  em¬ 
ployer  of  labor,  who  apparently  under  the  statute  is  the  only 


CONCLUSIONS 


385 

one  liable,  his  defense  is  not  so  much  that  his  right  to  contract 
has  been  infringed  upon,  but  that  the  act  works  a  peculiar 
hardship  to  his  employees,  whose  right  to  labor  as  long  as  they 
please  is  alleged  to  be  thereby  violated.  The  argument  would 
certainly  come  with  better  grace  and  greater  cogency  from  the 
latter  class.  (Holden  v.  Hardy.) 

Although  in  no  reported  case  is  the  claim  that  his  rights 
are  being  destroyed  urged  by  the  laborer,  and  although  in 
fact  the  laws  are  not  only  wholly  acceptable  to  him  and  even 
urged  by  him  upon  the  legislature,  yet  the  courts  continue 
to  find  in  such  legislation  that  the  rights  of  the  working¬ 
men  are  being  trampled  upon.  The  employer  is  thus  able 
to  turn  the  very  constitution  itself  into  an  instrument  of 
inequality.  Thus  do  courts  blind  their  eyes  to  the  conditions 
that  prevail  today  and  cling  loyally  to  the  ideas  of  a  former 
day  applying  them  to  the  positive  injury  of  those  very  ones 
whom  they  are  seeking  to  protect.  To  protect  every  man  in 
the  exercise  of  his  own  liberty  to  choose  conditions  in  which 
he  shall  work  results  today  in  permitting  to  one  party,  the 
employer,  the  arbitrary  dictation  of  conditions  in  which  the 
other,  the  employee,  must  work  or  starve.  That  such  a 
situation  is  frequently  recognized  by  courts  is  among  the 
hopeful  signs.  That  it  has  been  so  often  overlooked  is  a 
chief  cause  for  the  dissatisfaction  with  our  courts  evinced 
by  large  numbers  of  our  population. 

Unfortunately  the  reactionary  cases  may  be  of  equal 
weight  as  precedents  with  the  progressive  decisions.  In 
1905  the  United  States  supreme  court  annulled  the  New 
York  Bakeshop  law  on  the  ground  that  it  limited  the 
rights  of  bakers  to  work  longer  than  ten  hours  a  day  if 
they  chose,  and  characterized  it  as  “  mere  meddlesome  in¬ 
terference  with  the  rights  of  the  individual.”  In  1909 
the  supreme  court  of  Missouri  (State  v.  Miksicek)  adopted 
this  opinion  as  authority  in  annulling  a  law  of  that  state 


AMERICAN  COURTS  IN  LABOR  CASES 


386 

which  did  not  place  any  limitation  on  the  number  of  hours 
in  a  day  that  a  baker  should  be  allowed  to  work  but  which 
restricted  his  “  right  ”  to  labor  to  six  days  in  the  week. 
Bakers  in  Missouri,  on  a  principle  deliberately  adopted 
both  by  the  supreme  court  of  that  state  and  by  the  United 
States  supreme  court,  are  thus  fully  protected  in  their  in¬ 
herent  and  inalienable  right  expressly  granted  by  a  written 
constitution  to  gratify  their  impulses  to  industry  and  thrift 
by  working  twenty-four  hours  a  day  and  seven  days  in 
the  week.  The  blessings  of  liberty  are  thus  preserved  to 
all  citizens  of  these  United  States.  One  can  hardly  refrain 
from  sympathizing  with  barbers  in  certain  states  because 
of  their  deprivation  of  rights  in  being  denied  the  privilege 
of  working  while  compelled  to  witness  elsewhere  their  in¬ 
dustrious  brothers,  the  bakers,  busy  in  industry. 

An  editorial  first  published  in  the  Chicago  Evening  Post 
and  copied  in  other  papers  emphasizes  this  point  so  clearly 
that  it  would  be  difficult  to  improve  upon  it.  It  was  written 
at  the  time  of  the  trial  of  the  Illinois  women’s  ten-hour-a- 
day  law. 

It  must  be  a  great  comfort  to  the  working  women  of  Illi¬ 
nois  to  know  that  their  interests  are  being  so  faithfully  guarded 
by  Dora  Windeguth,  Anna  Kusserow  and  the  W.  C.  Ritchie 
Company,  paper-box  manufacturers. 

It  is  a  blessed  privilege  indeed,  that  of  “  overtime,”  the  very 
Beulah  land,  we  understand  from  the  Ritchie  petition,  of  the 
woman  who  toils.  Sweet  is  a  twelve-hour  day,  but  even 
sweeter  is  a  thirteen  or  a  fourteen,  crowned  with  “  supper 
money.”  There  is  a  great  zest  and  excitement  about  working 
after  dark.  The  electric  lights  throw  a  brilliant  glare  over 
the  shop  that  was  dingy  by  daytime;  the  machines  which 
hummed  monotonously  at  noon  now  run  into  queer  crescendos 
and  diminuendos ;  cheeks  that  were  pale  are  flushed  and  pretty; 
quitting  time  is  far  less  boisterous. 

And  then  there  is  the  money  consideration.  What  more 


CONCLUSIONS 


S%7 

natural,  in  a  business  community  governed  strictly  by  pecu¬ 
niary  ideals,  that  we  should  pay  a  certain  deference  to  the 
pecuniary  point  of  view  of  the  employee?  When  Dora  Winde- 
guth,  her  employer  at  her  elbow,  says  that  she  cannot  earn 
enough  in  ten  hours  to  live,  our  whole  chivalry  rises  to  her 
defense;  let  her  work  twelve  hours  then.  We  have  always 
contended  that  nobody  need  starve  in  America. 

It  is  interesting  to  reflect  that  while  Dora’s  feudal  fore¬ 
bears  fought  for  “  the  right  to  work,”  it  has  been  left  for 
Dora’s  generation  to  fight  for  the  right  to  work  overtime. 
But  there  is  still  a  chance — if  all  stick  together — to  save  this 
state  from  the  fate  of  Massachusetts,  Oregon,  Missouri,  Wash¬ 
ington  and  half  a  score  of  other  commonwealths  which,  given 
the  choice  between  healthy  womanhood  and  cheap  paper  boxes, 
are  now  going  without  paper  boxes. 

Opposition  to  the  Factory  Acts  in  England  was  based 
upon  class  interest  plus  the  accepted  principles  of  Iciissez 
faire.  Opposition  to  similar  legislation  in  this  country  is 
based  upon  class  interest  plus  the  accepted  principle  of  in¬ 
dividualism  embodied  in  our  constitutions. 

In  the  determination  of  property  right,  the  courts  are  not 
in  a  position  that  will  stand  careful  examination.  The 
fact  that  the  expression  life,  liberty  and  pursuit  of  happi¬ 
ness  in  the  Declaration  of  Independence  becomes  in  the  con¬ 
stitution  life,  liberty  and  property  is  a  significant  one. 
Property  has  in  fact  a  sanctity  in  the  minds  of  some  judges 
that  ranks  it  equal  with  life  itself.  It  may  be  insisted  by 
some  that  property  has  necessarily  a  personal  side,  that  prop¬ 
erty  right  is  only  one  form  of  personal  right.  A  person’s 
right  in  property  is  similar  in  kind  to  his  right  in  life.  This 
is  clear  so  far  as  it  goes.  In  its  application  the  conclusion 
of  the  analysis  is  not  always  kept  in  mind.  In  fact,  in  the 
minds  of  many  judges  the  difference  between  property  right 
and  personal  right  has  become  so  great  as  to  amount  in 


AMERICAN  COURTS  IN  LABOR  CASES 


388 

reality  to  a  difference  in  kind.  Rights  in  property  are  set 
off  against  rights  in  life  in  such  a  way  as  to  give  the  property 
right  the  decided  advantage.  How  often  is  an  act  which 
affects  the  income  of  property  construed  as  an  act  destruc¬ 
tive  of  property.  How  seldom  is  it  discovered  that  property 
is  being  so  used  as  slowly  to  deprive  one  of  life.  There  is 
not  always  the  same  clearness  of  vision  in  seeing  on  the 
one  hand  that  destroying  income  of  property  is  destroying 
property  and  is  an  invasion  of  the  property  right,  and  on 
the  other  that  destroying  means  of  livelihood  is  destroying 
life  itself  and  pursuit  of  happiness,  and  is  an  invasion  of 
the  right  to  life.  The  right  over  property  in  a  pistol  does 
not  include  the  right  of  its  owner  to  point  it  at  one  and 
shoot,  relying  on  that  one’s  freedom  of  action  to  enable  him 
to  get  out  of  the  way.  No  more  does  the  right  over  any  prop¬ 
erty  include  the  right  of  the  owner  to  set  certain  conditions 
of  labor  and  payment  of  wages  and  rely  on  the  working¬ 
man’s  freedom  of  contract  to  refuse  to  accept  the  terms  of¬ 
fered.  To  agree  to  pay  a  certain  wage  and  then  retain 
part  of  it  by  irregular  or  infrequent  payments  is  lessening 
the  wage-earner’s  income.  This  is  just  as  much  depriving 
him  of  the  right  to  life  as  is  the  lessening  of  the  income 
from  property  to  that  extent  depriving  the  owner  of  the 
right  to  property.  A  comparison  of  the  line  of  argument 
in  these  cases  and  in  boycott  cases,  for  example,  is  both  in¬ 
teresting  and  instructive. 

The  more  one  reads  the  decisions  the  more  he  must  neces¬ 
sarily  be  impressed  with  the  fact  that  a  number  of  opin¬ 
ions  all  too  large  are  given  over  to  the  repetition  of  those 
time-honored  phrases  of  an  extreme  individualism.  Dis¬ 
cussions  often  unnecessarily  elaborate  are  to  be  found  ring¬ 
ing  the  changes  on  “  life,  liberty  and  property/’  the  “  trinity 
of  rights,”  the  sacred  right  of  “  freedom  of  contract.” 
Even  granted  that  these  views  are  obiter,  their  injection 


CONCLUSIONS 


3«9 

into  the  opinion  reveals  the  attitude  of  the  judge  and  further 
shows  to  what  extent  these  obstructions  loom  up  to  obscure 
the  real  conditions  out  of  which  the  case  grows.  They 
assume  the  appearance  of  an  effort  more  or  less  blind 
to  compel  conformity  of  present  conditions  to  past  ideals 
through  the  persistent  use  of  expressions  brought  forward 
from  a  former  age.  Liberty  does  not  mean  the  same  to¬ 
day  that  it  did  in  1809.  The  idea  that  the  term  carries 
with  it  is,  if  possible,  of  greater  import  than  ever  before. 
Read  any  of  such  general  statements  in  the  abstract  and  they 
have  a  ring  of  true  Americanism  that  appeals  to  us.  But 
read  them  in  the  light  of  present  conditions  with  which  they 
undertake  to  deal  and  take  into  consideration  the  conclusion 
to  which  they  lead  and  one  must  confess  that  after  all  the 
ring  that  before  seemed  true  comes  to  have  a  hollow  sound. 

If  such  use  of  these  phrases  were  merely  to  no  purpose  at 
all,  the  situation  would  not  be  so  serious.  The  courts  are 
in  fact  so  using  them  as  to  defeat  the  very  purposes  for 
which  they  exist.  Liberty  is  so  interpreted  as  to  deprive  of 
liberty  those  who  stand  in  greatest  need  of  real  liberty.  In 
one  case  a  minority  recognizes  this  in  a  dissenting  opinion. 
The  Missouri  legislature  prohibited  the  use  of  store  orders 
in  payment  of  wages.  In  the  view  of  the  majority  of  the 
court  the  legislature  in  doing  this  had  taken  away  from  such 
workingmen  the  liberty  to  contract  as  others  may.  This  the 
court  declared  to  be  “  depriving  such  persons  of  a  time- 
honored  right  which  the  constitution  undertakes  to  secure 
to  every  citizen.”  (State  v.  Loomis.)  To  the  minority, 
however,  this  law  seemed  to  secure  a  liberty  rather  than  take 
one  away.  The  court  in  annulling  the  law  reduced  to  a 
shadow  again  the  liberty  which  the  legislature  undertook  to 
actualize.  What  the  workmen  most  want  and  what  they 
are  compelled  to  give  up  if  they  are  to  have  any  employ¬ 
ment  at  all,  because  of  the  superior  bargaining  power  of 


390 


AMERICAN  COURTS  IN  LABOR  CASES 


the  employer  or  because  of  the  indefinite  uncontrollable 
pressure  of  a  community,  is  thus  placed  permanently  be¬ 
yond  their  reach  in  order  that  they  may  have  their  con¬ 
stitutional  rights.  Freedom  of  contract  is  in  reality  a 
means.  It  has  received  such  emphasis,  however,  that  it  has 
come  to  be  regarded  as  an  end  in  itself.  As  such  it  is  a 
serious  obstacle  in  the  way  of  the  attainment  of  a  higher 
end,  industrial  liberty.  If  legal  protection  of  freedom  of 
contract  furthers  real  industrial  liberty,  it  should  be  de¬ 
fended  to  the  last.  When,  however,  this  is  not  the  case,  it 
loses  its  claim  to  protection  in  the  larger  interest  in  indus¬ 
trial  liberty.  When  the  further  legal  limitation  on  free¬ 
dom  of  contract  actually  increases  industrial  liberty,  such 
limitation  cannot  in  reason  be  regarded  as  a  violation  of  the 
real  purpose  and  meaning  of  the  constitution. 

There  is  evidence  that  the  courts  themselves  are  inclined 
more  and  more  to  interpret  constitutionality  in  terms  of 
necessity.  In  other  words  public  necessity  as  indicated  by 
conditions  of  public  morals,  public  health,  public  welfare, 
public  safety  determines  the  extent  to  which  the  individual¬ 
ism  shall  be  limited.  This  necessity  is  the  essence  of  police 
power.  The  definition  of  that  expression  lies  with  the 
court.  Courts  are  slow  to  define  it.  They  prefer,  and 
doubtless  wisely,  to  decide  only  whether  any  particular  act 
does  or  does  not  come  within  its  meaning.  The  police  power 
is  the  expression  of  necessity.  But  it  must  not  be  forgotten 
that  this  necessity  must  be  one  that  the  judge  sees.  Pro¬ 
fessor  Seager’s  conclusion  already  referred  to  is  that  “  the 
courts  will  sustain  any  measure  which  they  think  really  cal¬ 
culated  to  promote  the  public  welfare.  .  .  .  The  constitu¬ 
tional  and  the  economic  aspects  of  the  question  are  so  in¬ 
timately  related  that  we  may  be  certain  that  a  court  which 
believes  a  protective  law  economically  desirable  will  find  it 
legally  admissible.”  While  no  one  will  deny  the  advantage 


CONCLUSIONS 


391 


of  this  tendency,  it  must  be  admitted  that  it  is  not  sufficient. 
Too  much  depends  upon  the  method  of  presentation  of  the 
case  to  the  court,  and  altogether  too  much  upon  the  point 
of  view  of  the  judges.  It  must  not  be  overlooked  that  the 
degree  of  necessity  in  a  given  case  will  not  appear  to  be  the 
same  to  all  who  sit  on  the  case.  Long  training  in  the 
meaning  of  legal  phrases  and  little  schooling  in  interpret¬ 
ing  economic  principles  and  observing  industrial  conditions 
determine  the  judge’s  mental  attitude.  This  makes  the 
task  of  convincing  a  court  that  a  protective  law  is  economi¬ 
cally  so  desirable  that  it  should  be  held  legally  admissible  a 
very  difficult  one.  That  the  tendency  is  not  uninterruptedly 
in  the  direction  of  the  association  of  the  economically  desir¬ 
able  with  the  legally  admissible  has  been  shown  in  an  un¬ 
expected  way  by  the  New  York  court  of  appeals  in  its 
opinion  of  the  New  York  Workmen’s  Compensation  Act. 
Professor  Seager  has  more  recently  expressed  his  view  of 
this  decision. 

Impressed  by  the  suffering  and  destitution  which  industrial 
accidents  impose  each  year  upon  thousands  of  innocent  per¬ 
sons  ;  conscious  of  the  inadequacy  of  damage  suits  under  the 
employers’  liability  law  to  remedy  these  evils ;  recognizing  the 
inequality  in  intelligence  and  financial  resources  of  employer 
and  employee;  and  perceiving  the  great  interest  which  the 
state  has  in  the  subject, [the  commission] confidently  hoped  that 
the  courts  would  sustain  an  extension  of  the  police  power  to 
this  new  field  of  legislation.  The  highest  New  York  court  has 
declared  against  such  an  extension.  It  has  done  so,  it  should 
be  emphatically  stated,  not  because  it  is  opposed  to  the  law 
on  its  merits,  but  merely  because  it  feels  bound  by  the  con¬ 
stitution.1 

To  make  this  point  clear,  it  is  necessary  to  cite  only  a  few 
1  The  Survey,  vol.  xxvi,  p.  185,  April  29,  1911. 


392 


AMERICAN  COURTS  IN  LABOR  CASES 


passages  from  the  court’s  opinion.  “  In  arriving  at  this 
opinion  [of  unconstitutionality]  we  do  not  overlook/’  in¬ 
sists  the  court,  “  the  cogent  economic  and  sociological  argu¬ 
ments  which  are  urg*ed  in  support  of  the  statute. ”  The 
court  shows  by  its  further  statement  that  the  “  theory  of 
this  law  ”  is  clearly  understood.  It  admits  the  strength  of 
the  appeal  that  “our  present  system  [of  employers’  liability] 
is  uncertain,  unscientific  and  wasteful,  and  fosters  a  spirit 
of  antagonism  between  employer  and  employee  which  it  is 
to  the  interest  of  the  state  to  remove.”  The  opinion  of  this 
court  certainly  argues  for  the  economic  desirability  of  this 
law.  Yet  it  is  not  able  to  find  it  legally  admissible. 

The  statute,  judged  by  our  common-law  standards,  is  plainly 
revolutionary.  .  .  .  The  radical  character  of  this  legislation  is 
at  once  revealed  by  contrasting  it  with  the  rule  of  the  common 
law.  .  .  .  Under  our  form  of  government,  however,  courts 
must  regard  all  economic,  philosophical  and  moral  theories, 
attractive  and  desirable  though  they  may  be,  as  subordinate  to 
the  primary  question  whether  they  can  be  moulded  into  sta¬ 
tutes  without  infringing  upon  the  letter  or  spirit  of  our 
written  constitutions.  .  .  .  When  our  Constitutions  were 
adopted  it  was  the  law  of  the  land  that  no  man  who  was  with¬ 
out  fault  or  negligence  could  be  held  liable  in  damages  for  in¬ 
juries  sustained  by  another.  ...  It  is  conceded  that  [the  lia¬ 
bility  in  the  new  law]  is  a  liability  unknown  to  the  common 
law  and  we  think  it  plainly  constitutes  a  deprivation  of  liberty 
and  property  under  the  Federal  and  State  Constitutions.  .  .  . 
If  such  economic  and  sociological  arguments  as  are  here  ad¬ 
vanced  in  support  of  this  statute  can  be  allowed  to  subvert 
the  fundamental  idea  of  property,  then  there  is  no  private 
right  entirely  safe,  because  there  is  no  limitation  upon  the  ab¬ 
solute  discretion  of  legislatures,  and  the  guarantees  of  the 
Constitution  are  a  mere  waste  of  words.  .  .  .  The  argument 
that  the  risk  to  an  employee  should  be  borne  by  the  employer 
because  it  is  inherent  in  the  employment  may  be  economically 


CONCLUSIONS 


393 


sound,  but  it  is  at  war  with  the  legal  principle  that  no  em¬ 
ployer  can  be  compelled  to  assume  a  risk  which  is  inseparable 
from  the  work  of  the  employee  and  which  may  exist  in  spite 
of  a  degree  of  care  by  the  employer  far  greater  than  may 
be  exacted  by  the  most  drastic  law.1 

In  this  conclusion  appears  the  whole  difficulty  of  abiding- 
in  the  hope  that  our  judges  will  see  the  legal  reasonable¬ 
ness  of  legislation  even  when  its  economic  necessity  is  made 
to  appear.  In  the  first  place  it  is  often  extremely  difficult 
and  even  impossible  to  make  an  economic  necessity  real  to 
a  judge  who  is  in  such  a  mental  attitude  as  to  be  able  to  see 
only  legal  phases  of  a  question.  In  the  second  place,  even 
when  the  economic  necessity  is  made  so  real  to  the  court 
that  they  admit  it,  there  is  then  no  assurance  that  they 
will  feel  in  any  sense  bound  to  be  governed  by  that  neces¬ 
sity.  To  have  to  amend  a  state  constitution  in  order  to 
secure  laws  made  necessary  by  industrial  changes  would 
necessitate  a  constant  amending  process  and  the  amend¬ 
ment  of  state  constitutions  is  slow  and  difficult.  The 
amendment  of  any  constitution  so  as  to  make  possible 
laws  arising  out  of  economic  necessity  is  not  very  clearly 
in  accord  with  the  principles  of  political  science  if  dis¬ 
tinctions  are  to  be  maintained  between  constitutional  law 
and  statute  law.  To  have  to  amend  the  federal  consti¬ 
tution  in  order  to  secure  laws  made  necessary  by  in¬ 
dustrial  changes  would  necessitate  the  application  of  the 
continuous  amendment  process  to  a  constitution  that  is 
generally  regarded  as  practically  unamendable. 

Such  is  the  situation  that  arises  when  the  necessity  for 
a  law  must  be  a  necessity  that  the  court  can  see;  when  courts 
insist  upon  being  bound  by  written  constitutions,  “  the 
charters  which  demark  the  extent  and  the  limitations  of 

1  These  extracts  are  taken  from  the  opinion  as  printed  in  the  New 
York  Labor  Bulletin,  March,  1911,  pp.  59  et  seq. 


394 


AMERICAN  COURTS  IN  LABOR  CASES 


legislative  power;”  and  when  they  further  insist  that  they 
shall  not  be  bound  in  any  sense  by  “  the  frequent  and  violent 
fluctuations  of  that  which,  for  want  of  a  better  name,  we  call 
public  opinion.”  Courts  take  satisfaction  in  declaring  that 
public  opinion  cannot  enter  into  the  determination  of  what 
the  law  is.  Numerous  expressions  indicate  the  extent  to 
which  this  view  is  held. 

It  is  not  universally  held  however.  It  was  upon  this 
fact  that  the  New  York  Commission  based  its  expectation  of 
constitutionality.  The  supreme  court  of  the  United  States 
has  deferred  in  at  least  two  important  cases  to  views  gener¬ 
ally  held  in  public  opinion.  One  of  these  cases  is  that  so 
frequently  referred  to, — Muller  v.  Oregon.  The  court  there 
expressly  recognized  the  necessity  for  the  law  based  upon 
“  a  widespread  and  long-continued  belief  ”  that  the  needs 
of  the  case  “  justify  special  legislation.”  The  other  is  the 
more  recent  utterance  in  a  case  not  dealing  with  a  question 
of  labor  legislation.  The  law  in  question  was  upheld  un¬ 
der  the  police  power  on  the  ground  that  “  strong  and  pre¬ 
ponderant  opinion  ”  and  “  prevailing  morality  ”  hold  the 
law  “  to  be  greatly  and  immediately  necessary  to  the  public 
welfare.”  With  such  a  precedent  and  example  in  recogniz¬ 
ing  great  and  immediate  necessity  and  widespread  and  long- 
continued  belief,  the  New  York  court  declares:  “We  can¬ 
not  recognize  them  as  controlling  our  construction  of  our 
own  constitution.” 

Where  such  conclusions  are  reached  as  this  typical  one 
indicates,  there  is  but  one  thing  to  do  to  meet  the  exigency. 
That  is,  of  course,  to  secure  an  amendment.  New  York 
has  passed  through  the  experience  before.  It  can  do  so 
again.  But  even  the  demonstration  of  the  ability  to  amend 
a  constitution  every  time  it  is  found  that  legal  conservatism 
and  eighteenth  century  philosophy  make  it  necessary  does 
not  end  the  matter. 


CONCLUSIONS 


395 


If  judges  are  to  give  an  interpretation  to  the  phrases  of 
our  constitution  such  that  these  phrases  shall  be  adapted  to 
modern  society,  if  they  are  to  be  able  to  see  the  reasonable¬ 
ness  of  legislation  for  social  welfare,  if  they  are  to  adjust 
the  law  to  society,  it  is  not  enough  that  they  shall  know 
the  law.  They  must  know  society.  They  must  be  so 
trained  for  the  bench  that  they  shall  have  keen  social  in¬ 
sight  as  well  as  keen  legal  insight.  They  must  add  to  a 
profound  knowledge  of  things  legal  a  comprehensive  under¬ 
standing  of  things  social.  If  society  changes  from  decade 
to  decade,  then  judges  must  keep  pace  with  such  changes. 
Changing  society  must  be  accompanied  by  changing  ad¬ 
justment  in  the  law.  No  jurist  can  lay  claim  to  real  great¬ 
ness  who  holds  the  view  that  constitutional  law  is  an  un¬ 
changing  rule  of  action  for  society  to  which  society  must 
forever  conform.  Law  is  for  society  not  society  for  law. 
So  also  with  constitutions;  they  are  for  society.  Not  all  the 
advantages  of  written  constitutions  combined  can  be  made 
to  stand  as  an  obstacle  in  the  way  of  the  normal  develop¬ 
ment  of  social  changes.  That  a  written  constitution  is  a 
mould  that  is  forever  to  confine  a  society  within  the  limits 
of  its  fixed  lines  is  a  conception  that  cannot  stand  the  test 
of  application.  If  the  lines  of  the  constitution  are  variable 
enough  to  admit  of  social  development,  then  well  and  good. 
If,  however,  these  lines  are  rigid  and  unyielding,  there  must 
sometime  come  a  break.  That  society  must  conform  to  a 
constitution  is  a  principle  of  very  minor  importance  com¬ 
pared  with  the  fundamental  principle  that  constitutions  must 
conform  to  societies. 

The  point  at  which  this  principle  fails  of  recognition 
is  in  the  judicial  interpretation  of  concepts  of  liberty  and 
justice.  It  is  becoming  more  and  more  necessary  that  those 
upon  whom  is  to  fall  the  duty  of  interpreting  our  con¬ 
stitutions  in  terms  of  the  present  shall  have  the  new  ap- 


AMERICAN  COURTS  IN  LABOR  CASES 


396 

predation  of  society.  The  importance  of  the  word  “  so¬ 
cial  ”  as  a  qualifying  adjective  is  constantly  increasing. 
Social  legislation  is  clearly  the  order  of  the  day  because 
the  problems  to  be  dealt  with  by  legislation  are  social  prob¬ 
lems.  Justice  is  ever  the  thing  sought.  It  was  so  in 
earlier  centuries;  it  is  so  in  the  twentieth  century.  Social 
justice  is  now  sought  as  individual  justice  was  sought  a  cen¬ 
tury  and  more  ago.  Individual  justice  was  sought  before  it 
had  been  clearly  defined.  The  quest  for  it  aided  in  the 
definition  of  it.  So  we  have  not  a  generally  accepted  de¬ 
finition  of  social  justice.  Yet  the  pursuit  of  it  is  leading  to 
a  better  understanding  of  its  nature.  The  best  formula¬ 
tion  of  a  definition  of  social  justice  is  found  in  the  writings 
of  three  men  who,  approaching  the  problem  from  quite  dif¬ 
ferent  points  of  view,  arrive  at  very  similar  conclusions. 
Taking  the  three  statements  together  they  are  fairly 
complete. 

Justice  consists  in  granting,  so  far  as  possible,  to  each  in¬ 
dividual  the  opportunity  for  a  realization  of  his  highest  ethical 
self,  .  .  .  this  involves,  or  rather  is  founded  upon,  the  gen¬ 
eral  duty  of  all,  in  the  pursuit  of  their  own  ends,  to  recognize 
others  as  individuals  who  are  striving  for,  and  have  a  right  to 
strive  for,  the  realization  of  their  own  ends.  In  other  words, 
there  is  a  general  ethical  mandate  to  be  a  person,  and  to  re¬ 
spect  others  as  persons ;  to  treat  others  as  ends,  never  as  mere 
means  to  one’s  own  end.1 

The  true  definition  of  justice  is  that  it  is  the  enforcement  by 
society  of  an  artificial  equality  in  social  conditions  which  are 
naturally  unequal.  By  it  the  strong  are  forcibly  shorn  of  their 
power  to  exploit  the  weak.  .  .  .  The  civil  and  political  ine¬ 
qualities  of  men  have  been  fairly  well  removed  by  [civil  jus¬ 
tice].  Person  and  property  are  tolerably  safe  under  its  rule. 
It  was  a  great  step  in  social  achievement.  But  society  must 


1  Willoughby,  Social  Justice,  p.  24. 


CONCLUSIONS 


39  7 

take  another  step  in  the  same  direction.  It  must  establish 
social  justice.1 

Justice  may,  then,  be  described  as  the  effort  to  eliminate 
from  our  social  conditions  the  effects  of  the  inequalities  of 
Nature  upon  the  happiness  and  advancement  of  man,  and  par¬ 
ticularly  to  create  an  artificial  environment  which  shall  serve 
the  individual  as  well  as  the  race,  and  tend  to  perpetuate 
noble  types  rather  than  those  which  are  base.2 

These  general  statements  have  already  done  much  to 
modify  the  practical  conception  of  justice.  As  they  come 
to  be  more  generally  understood  they  will  do  more.  They 
give  expression  to  a  new  view.  Social  justice  lays  down 
for  us  a  new  rule.  That  new  rule  must  become  a  part  of 
our  constitution.  No  constitutional  amendments  are  neces¬ 
sary.  All  that  is  needed  is  to  have  the  new  meaning  read 
into  the  present  phrases.  The  new  principle  must  be  a 
guide  for  our  courts  as  well  as  for  our  legislatures  and  our 
administrative  departments.  We  are  fast  approaching  the 
time  when  our  progress  must  cease  until  this  idea  is  em¬ 
bodied  in  our  constitutional  law.  The  practical  applica¬ 
tion  of  these  new  lines  of  development  will  appear  in  a  new 
interpretation  of  our  constitutional  phrases.  Instead  of  say¬ 
ing,  as  did  the  New  York  court  of  appeals  (People  v. 
Coler),  that  “  a  law  that  restricts  freedom  of  contract  on 
the  part  of  both  master  and  servant  cannot,  in  the  end, 
operate  to  the  benefit  of  either it  may  be  held  that  as  a 
matter  of  fact  as  industry  is  at  present  organized  a  law 
restricting  freedom  of  contract  on  the  part  of  both  em¬ 
ployer  and  employee  may  and  often  will  in  the  end  oper¬ 
ate  to  the  benefit  of  both.  With  this  new  view  of  the 
situation,  legislation  that  forbids  the  employer  from  em- 

1  Ward,  Applied  Sociology,  pp.  23,  24. 

2  Kelly,  Government  or  Human  Evolution,  vol.  i,  p.  360. 


AMERICAN  COURTS  IN  LABOR  CASES 


398 

ploying  any  one  under  certain  prescribed  conditions  will  no 
longer  appear  as  an  invasion  of  the  freedom  of  the  work¬ 
men  but  rather  as  an  insurance  to  him  of  that  freedom 
guaranteed  to  him  in  the  constitution.  Freedom  of  contract, 
to  repeat,  is  not  an  end  in  itself.  It  is  clearly  a  means  to 
accomplishing  an  end.  When  this  end  is  defeated  by  the 
very  means  that  are  intended  to  accomplish  it,  then  it  seems 
that  the  means  may  fairly  be  held  to  be  unconstitutional. 
That  end  may  be  expressed  as  “  life,  liberty  and  pursuit 
of  happiness,”  “  life,  liberty  and  property,”  or  “  social  jus¬ 
tice.”  They  must  be  the  same.  If  legal  limitation  of 
freedom  of  contract  furthers  the  ends  of  social  justice  by 
equalizing  the  conditions  of  bargaining  it  cannot  be  in  vio¬ 
lation  of  the  real  purpose  of  the  constitution.  If  the  things 
of  fundamental  importance  are  to  remain  in  our  present  in¬ 
dustrial  state  and  at  the  same  time  social  justice  be  realized, 
competition  must  be  preserved  as  a  factor  in  distribution  be¬ 
tween  employer  and  employee.  Strengthening  the  em¬ 
ployee  should  be  allowed  if  in  fact  it  equalizes  the  competi¬ 
tion.  This  question  of  fact  cannot  be  answered  in  generali¬ 
zations  from  a  discarded  political  philosophy. 

Thus  our  view  changes.  Regulative  laws  heretofore  held 
unconstitutional  are  in  fact  a  protection  to  constitutional  pri¬ 
vileges  and  therefore  they  are  a  constitutional  necessity. 
They  are  not  only  not  positively  unconstitutional;  they  are 
positively  constitutional.  They  both  modernize  and  vitalize 
these  honored  phrases  with  a  new  and  a  larger  life.  A  new 
meaning  is  given  to  the  constitution.  The  way  is  opened 
for  it  to  do  for  twentieth  century  civilization  what  it  has 
done  for  nineteenth  century  civilization. 


INDEX 


Absurd  conclusions,  226,  383  et  seq. 
Aloofness  of  courts,  236 
Amendment,  constitutional,  376, 
393,  394 

Bakers,  24,  312,  350,  370.  (See  also 
hours  of  labor.) 

Barbers.  (See  hours  of  labor.) 
Blacklist,  130  et  seq.;  summary,  135 
Boycott,  81  et  seq.;  definition  of, 
81-85;  favorable  view,  96;  un¬ 
favorable  view,  85,  87;  motive, 
108;  and  strike  compared,  112; 
summary,  111-116 
Cases,  list  of,  3 

Closed  shop.  (See  Union  shop.) 
Coal,  screening,  275 
Combination,  221 

Commissions  and  experts,  374; 

value  of,  368 
Commodity,  labor  a,  230 
Common  law,  relation  to  masses, 

363 

Complexity  of  problems,  13 
Conclusions,  1 1,  234,  253,  257,  360 
Conditions,  influence  of,  353 ;  v. 

precedent,  341  et  seq. 
Consistency,  lack  of,  342 
Conspiracy,  35,  36  et  seq .. 
Constitutions,  unchanging,  364; 
written,  361 

Constitutionality  and  necessity,  390, 
393 

Contract,  17;  freedom  of,  379  et 
seq.;  union  shop,  162-168 
Corporation  law,  14 
Courts,  19  et  seq.;  and  legislatures, 
367;  criticism  of,  19;  functions 
of,  366 

Early  cases,  35 ;  trades  involved,  36 
Economic  reasoning,  44-48,  372 
Ely,  Professor,  356 
Employee,  disadvantages  of,  244 
Employer, .  advantages  of,  244 
Expert  opinion,  value  of,  372 


Factory  legislation,  15 
General  propositions,  value  of,  234, 
244 

Holmes,  Mr.  Justice,  31,  157,  374 
Hours  of  labor,  bakers,  favorable, 
312;  unfavorable,  318;  barbers, 
favorable,  325 ;  unfavorable, 
329;  mines,  favorable,  281;  un¬ 
favorable,  285;  women,  292; 
favorable,  293;  unfavorable, 
300;  summary,  309 
Individual  rights,  239 
Individualism,  388 
Industrial  changes,  361,  377 
Intimidation,  21 1 
Introduction,  7  et  seq. 

Judges,  socialized,  395 
Just  wages,  343 
Justice,  social,  396 
Kelley,  Mrs.,  369 
Kelly,  Edmond,  397 
Labor  as  a  commodity,  230 
;  Law-school  courses,  372 
Laissez  faire,  341,  376 
Legal  theory  not  modern,  360 
Legislation,  effect  of,  14 
Legislature  v.  courts,  15,  16,  23 
Liberty,  changing  meaning  of,  377; 

v.  welfare,  377  et  seq. 

Life,  liberty  and  property,  223;  loss 
of  meaning,  375 
List  of  cases,  3 

Mines  and  smelters.  (J3ee  hours 
of  labor.) 

Money,  payment  of  wages,  264 
Motive,  249  et  seq.;  boycott,  89, 
108;  and  combination,  221 
Obiter  dicta,  value  of,  10 
Organization,  importance  of,  246 
Philosophy,  changing,  362 
Picket,  1 17  et  seq.;  definition  of, 
1 17;  favorable  view,  118-123; 
unfavorable  view,  123-127; 
summary,  128 


399 


INDEX 


400 

Precedent,  court  attitude  toward, 
16;  binding  force  of,  20,  346, 
385;  conditions  v.,  341  et  seq. 
Principles,  value  of  general,  234, 
240,  244 

Private  property,  right  to,  349 
Probable  expectancy,  205 
Property  right,  387  et  seq. 

Public  opinion,  31,  394 
Referee,  371,  372 
“  Require  or  permit  ”  clause,  344 
Rights,  development  of,  242;  ab¬ 
solute  and  relative,  215,  243 
Right  to  private  property,  349 
Seager,  Professor,  369,  390,  391 
Social  justice,  396 
Socialization,  376 
Socialized  judges,  395 
Strike,  57;  definition  of,  57-62;  de¬ 
fense  of,  63 ;  purpose  of  sum¬ 
mary,  249;  right  discussed,  71; 
right  restricted,  66,  72;  devel¬ 
opment  of  court  opinions,  78; 
summary  of  opposing  views, 
76 ;  summary,  249 ;  and  boycott, 
112 

Taft,  Judge  W.  H.,  74,  84,  90,  104, 
139 

Tenements,  334  et  seq.,  349,  369 
Training  of  judges,  362 


Unionism,  136  et  seq.;  legislation, 
146  (see  also  union  shop) ; 
right  to  combination,  139 ; 
right  to  organize,  136,  137,  141, 
144;  rights  of  unions,  169  et 
seq.;  rights  of  unions,  favor¬ 
able  view,  171 ;  rights  of 
unions  over  members,  188-205; 
rights  of  unions  over  non¬ 
union  men,  172-187;  scope  of, 

144 

Union  shop,  146  et  seq.;  legisla¬ 
tion,  154;  contract,  162-168; 
contract,  summary,  168;  legis¬ 
lation,  146;  legislation,  sum¬ 
mary,  158 

Wages,  payment  of,  261  et  seq.; 
just,  343;  money  payment,  fav¬ 
orable  view,  264;  money  pay¬ 
ment,  unfavorable  view,  268; 
screening  coal,  favorable,  275 ; 
screening  coal,  unfavorable, 
278;  time  of  payment,  favor¬ 
able,  261 ;  time  of  payment,  un¬ 
favorable,  262 
Ward,  Professor  396 
Welfare  v.  liberty,  377,  389 
Willoughby,  Professor,  396 
Women.  (See  hours  of  labor.) 


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